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SUPPLEMENT 


TO  THE 


DIGEST  OF  DECISIONS 


OF  THE 


Federal  Courts  and  Interstate 
Commerce  Commission 


IN  THE   MATTER 


TRANSIT  PRIVILEGES 


By 

Charles  S.  belsterling 

Of  the  Pennsylvania  Bar 


Pittsburgh,  Pa. 
February  io,   1913 


Subsequent  to  the  order  of  the  Interstate  Commerce 
Commission  of  August  14th  in  the  Transit  Case,  24 
I.  C.  C.  Rep.,  340,  and  Supplemental  RejM.it  tlici-clo 
25  I.  C.  C.  Rep.,  l.SO,  many  protests  were  filed  with  the 
Interstate  Commerce  Commission  as  to  the  manner 
and  methods  employed  by  the  railroads  in  carrying  out 
the  previous  orders  of  tlie  Commission  dealing  with  the 
regulation  of  transit  privileges  on  grain,  including  the 
increase  in  charges  that  were  exacted  upon  the  move- 
ment of  milled  products  of  grain  over  what  were  for- 
merly charged  for  a  like  movement  of  similar  tonnage. 
Also  protests  were  received  from  the  luml)er  interests 
and  the  cotton  merchants  as  to  the  operation  of  transit 
privileges  under  the  taritfs  of  the  cai'riers.  In  conse- 
quence of  which  the  Commission  held  a  hearing  in  Wash- 
ington during  the  week  of  December  80,  1912.  for  the 
purpose  of  hearing  from  any  parties  who  desired  to  be 
heard  in  the  matter  of  substitution  of  tonnage  at  transit 
points  and  the  charges  that  were  in  any  wise  affected 
by  such  privileges. 

Following  this  hearing  the  Commission  under  date 
of  February  10,  1913,  issued  the  Third  Supplemental 
and  Final  Report  in  the  Transit  Case,  26  I.  C.  C.  Rep., 
1,  infra,  revoking  Conference  rulings  Nos.  181,  203  and 
Rule  No.  76  of  the  tariff  circular  referred  to  in  para- 
graphs Nos.  154  and  155  of  this  book. 


The  followiiifr  is  tlie  full  text  of  the  decision: 

THIRD    SUPPLEMENTAL   AND   FINAL   REPORT 
OF  TTTE  COMMISSION. 

McChori)^  Commissioner: 

"The  Commission's  investigation  of  the  general 
qnestion  of  transit  privileges  has  continned  withont  in- 
terrnption  thronghont  the  past  year.  Practices  dis- 
closed dnring  the  early  part  of  the  year  made  it  seem 
advisable  to  ns  to  entei-  an  order  of  snch  a  character  as 
wonld  show  np  and  bi-ing  forcibly  home  to  the  respond- 
ents pnblishing  the  tariffs,  and  also  to  those  nsing  the 
])rivileges.  the  proper  relation  of  the  tariffs  and  the 
practices  to  the  law.  It  was  clear  to  ns  that  the  tariffs 
in  many  instances  named  the  privileges  in  snch  man- 
ner as  to  conceal  their  real  application,  and,  as  proof 
of  this,  carefnl  inspection  by  the  Commission  at  mill- 
ing points  demonstrated  that  rates  and  practices  were 
not  being  enforced  in  accordance  with  the  pnblished 
tariffs.  Taking  the  sitnation  as  then  presented  and  rec- 
ognizing the  right  of  the  carriers  to  initiate  tariffs,  the 
order  effective  Angnst  15,  1012.  was  dii-ected  against 
the  respondents  pnblishing  transit  privileges  on  grain 
and  grain  pi'odncts,  reqniring  them  to  place  certain  re- 
strictions aronnd  the  privileges  as  pnblished,  which,  in 
the  opinion  of  the  Commission,  were  necessary  to  meet 
the  evils  fonnd  accom]>anying  the  operation  of  the  tariffs 
then  in  force. 

The  resnlt  of  this  order  was  what  we  expected  it 
wonld  be.  namely,  it  demonstrated  beyond  cavil  the  loose 
and  irresponsible  manner  in  which  the  transit  privi- 
leges were  being  operated.  The  order  served  to  bring 
to  the  snrface  the  real  natnre  and  scope  of  the  privileges 
and  rates  as  pnblished.  whcrenpon  it  was  foniid  tliat  the 
tariffs  did  not  in  reality  contain  the  privileges  that  they 
were  snpposed   to   contain.     The  resnlt   was  that  the 


tariffs  were  then  for  the  first  time  properly  applied — 
that  is,  thaj  were  then  enforced  in  the  manner  in  wliich 
they  should  have  been  enforced  at  all  times. 

In  other  words,  the  effect  of  this  order  of  August 
15,  1912,  was  that  for  the  first  time  in  the  history  of 
transit  the  tariff's  were  effectively  enforced.  The  ship- 
pers and  millers,  particularly  in  the  northwest  and 
southwest,  at  once  complained  that  their  business  was 
seriously  hurt  and  it  was  said  that  the  order  of  the  Com- 
mission was  too  severe.  This  proceeding  (docket  No. 
3002)  was  purposely  kept  open  in  order  that  the  Com- 
mission might  promptly  deal  with  whatever  situation 
arose,  and  it  at  once  took  up  complaints  of  the  millers 
and  shippers  and  made  exhaustive  examination  into 
the  real  cause  of  the  hardships  complained  of.  Our  con- 
clusions as  to  the  responsibility  for  these  burdens  were 
quite  fully  covered  in  the  supplemental  opinion  of  No- 
vember 12,  1912,  and  it  will  not  be  necessary  to  repeat 
what  we  then  said.  Particular  attention  is  invited,  how- 
ever, to  our  conclusions  in  that  opinion  as  to  the  abil- 
ity of  the  respondents  to  legalize  certain  practices  by 
providing  in  their  tariffs  for  through  routes  and  Joint 
rates. 

The  course  thus  followed  by  the  Commissiim  made 
it  apparent  to  all  that  an  intolerable  situation  had  arisen 
due  to  the  failure  of  the  carriers  to  so  publish  their 
tariffs  as  to  keep  pace  with  the  transit  privileges,  and 
openly  and  precisely  publish,  as  the  statute  says  they 
shall,  every  rate,  practice,  or  privilege  that  the  respon<l- 
ents  permit  on  their  lines.  The  failure  of  the  respond- 
ents to  obey  the  law  in  this  important  regard  may  be 
set  down  as  the  primal  cause  of  the  many  difficulties 
which  have  been  brought  to  our  attention.  At  this  point 
we  realized  that  it  was  highly  advisable,  if  not  our  duty, 
to  aid  the  respondents  in  everj  way  possible  in  speedily 
relieving  the  situation,  and  in  order  that  the  Commis- 


siou  and  the  cariiers  might  have  the  benefit  of  the  eoni- 
bined  wisdom  of  the  shipping  interests  npon  the  wliole 
qnestion   of  transit,    representatives   of   those   enjoying 
transit  priviU'ges  on  all  eommodities  were  invited  to  a 
conferenee  where  they  could  mutnally  confer  over  the 
matter   and.    if    iK»ssible,    make    infornml    lecommenda- 
tions.     This  oi)portnnity  was  accepted  by  the  shippers 
and  we  have  before  us  their  suggestions,  which  are  in 
the  form  of  a  substitute  for  our  Knle  70,  Tariff  Circu- 
lar 18-A,  dealing  with  transit.     Immediat(dy  following 
this  conference  the  Commission  sat  and  listened  to  all 
parties  who  desired  to  be  heard  on  the  general  subject 
of   transit   privileges   upon    any    commodity.      At    this 
hearing,  Avhich  extended  over  an  entire  week,  the  repre- 
sentatives of  the  carriers  \vere  present,  and  all  parties 
were  fully  heard.    In  order  to  promote  the  consideration 
of  the  propositions  advanced  as  the  result  of  this  con- 
ference and  hearing,  the  Commission,  as  soon  as  pos- 
sible, invited  the  carriers  to  send  representatives  to  a 
conference  which  should  carefidly  consider  the  entire 
situation,  and  especially  the  propositions  advanced  on 
behalf  of  the  millers  and  shippei's.    This  conference  was 
duly  held,  and  its  i-ecommendations  are  also  of  record. 
It  has  come  to  pass  now  that  the  entire  subject  of 
transit  privileges  and  their  regulation  is  presented  npon 
a  basis  somewhat  distinct  and   apart  from   that   upon 
which  it  has  been  heretofore  approached  by  the  Com- 
mission.    The  atmosphere  has  been  cleared,  so  to  speak, 
and   the  actual   conditions   are   understood   and   recog- 
nized more  completely,  we  thiidc.  than  ever  before.    The 
ti'uth  of  this  last  statement  seems  verified  by  the  very  na- 
ture of  the  ])ropositioiis  that  have  come  from  both  of  the 
conferences  above  I'eferred  to.    It  is  fair  to  sum  up  these 
recommeiidiUions  as  a  request  for  the  authorization  of 
substitution.     The  only  limitation   thereto  is  that  one 
article  or  commodity  should  not  be  substituted  for  an 


entirely  different  article  or  commodity.  In  other  words, 
it  is  desired  to  regard  all  wheat  as  wheat,  and  all  corn 
as  corn,  and  all  hardwood  as  hardwood.  The  shippers' 
conference  adopted  a  rcsolntion  to  the  effect  that  said 
Knki  7(j  is  "commercially  unworkable."  Both  confer- 
ences requested  that  Rule  76  be  abolished,  and,  ^s  it  is 
true  that  all  the  Commission  has  said  upon  the  subject 
of  transit  since  this  rule  was  adopted  has  been  based 
upon  that  rule,  it  is  clear  that  when  it  is  superseded, 
practically  all  of  the  Commission's  subsequent  require- 
ments, rules,  and  orders  on  the  subject  of  transit  go  with 
it,  in  so  far  as  they  constitute  binding  rules  of  action.* 
Our  previous  administration  upon  the  subject  of 
transit  can  be  said  to  have  been  under  circumstances  and 
conditions  quite  different  from  those  of  the  present  day. 
Much  that  we  then  set  out  to  do  in  the  way  of  bringing 
the  carriers  and  shippers  to  a  realization  of  the  unlaw- 
ful status  of  the  business  has  been  accomplished.  As 
before  stated,  we  have  again  gone  over  this  entire  mat- 
ter with  exhaustive  investigations,  inspections,  confer- 
ences and  hearings,  and  we  think  that  the  time  has  come 
to  take  a  stand  upon  this  general  subject  which  may 
appear  to  be  somewhat  inconsistent  with  our  attitude 
in  the  past.  However  that  may  be,  w^e  intend  that  the 
views  which  we  now  express  shall  supersede  all  that  has 
been  promulgated  heretofore  on  the  subject  of  transit 
privileges  and  their  regulation  in  so  far  as  it  may  have 
constituted  a  rule  of  action. 


*This  abrogates  the  policing  rules  under  Caption  XVI — in 
so  far  as  they  constitute  binding  rules  of  action,  although  there  is 
no  change  in  the  mandate  of  the  laws  in  that  the  transit  rules 
must  not  be  unreasonable,  unjustly  discriminatory  tior  unduly 
preferential. 

The  initiative  is  now  placed  in  hands  of  the  carriers  to  make 
their  own  transit  rules  under  their  own  responsibilities  and  liabil- 
ities imposed  upon  them  by  the  act,  subject  to  appropriate  action 
upon  the  part  of  the  Commission  or  the  courts  in  the  event  that 
the  rates,  regulations  or  practices  are  found  to  be  in  violation  of 
the  law. 


We  understand  that  the  carriers'  conference  above 
referred  to  took  the  substitute  for  Rule  76  proposed  hy 
the  shippers'  conference  as  the  basis  of  its  deliberations. 
The  substitute  proposed  by  the  carriers'  conference  con- 
tains the  same  general  thought  as  that  of  the  shippers, 
and  is  as  follows : 

When   rules  and   regulations  have  been  estab- 
lished in  tariff  form  clearly  defining  the  purpose  or 
purposes  for  and   the  terms  under  which   transit 
privileges  are  granted,  and  providing  also  for  the 
effective  policing  of  the  operations  under  the  ar- 
rangement, a  shipment  may  be  stopped  in  transit 
and  the  same  shipment  or  a  proper  equivalent  (less 
invisible  loss  in  weight),  as  set  forth  in  said  rules 
and  regulations,  may  be  forwarded  at  the  through 
rate  provided  for  by  tariff  from  the  original  point 
of  shipment  to  final  destination  plus  the  charge  for 
transit  privilege,  if  any.      (This  rule  shall  not  be 
construed  to  authorize  the  publication  of  tariffs  pro- 
viding for  the  substitution  of  one  commodity  for 
a  commodity  of  a  different  kind.     That  is  to  say, 
oats  or  the  products  of  oats  for  corn,  corn  or  the 
products  of  corn  for  wheat,  wheat  or  the  products 
of  wheat  for  barley,  or  shingles  for  lumber.) 
The  Commission  has  been  assured,  both  on  behalf 
of  the  carriers  and  the  shippers,  that  the  carriers  can 
lawfully  publish   tariffs  specifically  permitting  substi- 
tutions in  so  many  words,  and  that  in  the  absence  of  a 
showing  that  they  are  unreasonable,   or  unjustly  dis- 
criminatory, or  unduly  preferential,  they  are  entirely 
proper,  and,  as  we  are  told,  no  harm  is  done.     The  pro- 
posed amendments  to  Rule  76  are  drawn  with  this  idea 
in  mind.     Upon  careful  (•onsiderati<m  of  the  whole  mat- 
ter it  is  our  coTU'lusion  tliat  w(^  should  accede  to  the  re- 
quest that  Rule  76  be  canceled,  l)ul,  on  the  whole,  we  do 
not  think  that  it  would  be  wise,  even  if  within  our  prov- 


ince,  to  publish  as  a  rnliiij;  of  the  Commission  such  a 
requirement  as  has  been  proposed.  It  is  our  best  judg- 
ment that  the  policy  of  makinii;  orders,  di*awin<;  i-ules,  or 
expressing;'  views  as  to  what  would  or  would  not,  under 
certain  conditions,  be  considered  a  violation  of  law  as 
to  transit  privileges,  be  now  departed  from  by  us,  as  the 
carriers  are  charged  with  the  duty  of  initiating  their 
rates,  regulations,  and  practices  under  their  own  re- 
sponsibilities and  liabilities  imposed  upon  them  by  the 
act,  subject  to  the  appropriate  action  on  the  part  of  the 
Commission  or  the  courts  in  the  event  that  the  rates, 
regulations,  or  practices  are  found  to  be  in  violation 
of  law. 

If  tariffs  can  be  filed  as  proposed  providing  for  the 
lawful  exercise  of  transit  practices  upon  grain  or  other 
commodities,  and  published  rates  maintained,  the  car- 
riers are,  of  course,  at  liberty  to  proceed  accordingly. 
If  difficulties  arise  over  the  rates  and  practices  upon 
questions  of  unjust  discrimination,  unreasonableness, 
or  undue  preference,  or  if  there  is  involved  the  question 
of  through  routes  and  joint  rates,  these  are  matters 
Avhich  are  peculiai-ly  within  our  province  and  can  be 
disposed  of  by  following  the  procedure  set  out  in  the 
law. 

Should  action  be  necessary  on  our  part  under  the 
provisions  of  the  law  above  referred  to  which  specifi- 
cally authorize  us  upon  proper  showing  to  grant  relief, 
we  think  that  public  interests  demand  that  upon  its 
being  made  to  appear  that  such  relief  is  needed,  we  in- 
stitute an  entirely  new  proceeding  in  the  nature  of  an 
investigation  upon  our  own  motion  or  upon  general 
complaint  for  the  purpose  of  determining  whether  or 
not  any  one  or  more  of  the  first  three  sections  of  the  act 
are  being  violated,  or  whether  relief  under  section  15 
should  be  orderd. 

This  report  will  close  the  so-called  Transit  Case. 
Docket  No.  3002.     There  should  be  no  reason  for  delay 


on  the  part  of  respondents  in  proceeding  to  file  tariffs 
which  will  lawfully  meet  the  situation. 

The  order  heretofore  entered  in  this  proceeding 
will  be  revoked,  and  Conference  Rulings  181,  203,  and 
Rule  76  of  the  Tariff  Circular  are  withdrawn." 


'0 


y 


DIGEST  OF  DECISIONS 


OF  THE 


Federal  Courts  and  Interstate 
Commerce  Commission 


IN  THE  MATTER 


OP 


TRANSIT   PRIVILEGES 


BY 

CHARLES  S.  BELSTERLING 

of  the  Pennsylvania  Bar 


Pittsburgh,  Pa. 
January  i,  1913 


COPYRIGHT,    1913 

BY 

Charles  S.  Belsterling. 


Z-w-^'i 


^  TABLE  OF  CONTENTS. 


{, 


(References  are  to  Paragraphs.) 

I     LEGALITY 

Commission   contended   originally   act   does   not 

sanction   transit   privileges 1 

Compression  of  cotton  in  transit  not  unlawful 2 

Floating  cotton  in  transit  not  unlawful 3 

Transit  privileges  when  reasonable  not  in  viola- 
tion of  the  act * 

Transit  privileges  have  cheapened  cost  of  trans- 
portation and  probably  of  manufacture 6 

There  is  a  limit  to  products  that  can  be  reason- 
ably milled  in  transit ^ 

Milling  grain  in  transit  not  unlawful 7 

Feeding  and  grazing  stock  in  transit  not  unlawful       8 
Fabrication  of  structural  steel  in  transit  not  un- 
lawful         ^ 

Assorting  and  grading  of  wool  in  transit  not  un- 
lawful   ---     ^^ 

Treating  corn  in  transit  not  unlawful  (beneficial 

to  carriers,  dealers  and  the  public) H 

Storage  in  transit  without  charge  therefor  and 

time  limit  disapproved 1- 

Allowances  for  elevation  in  transit  not  unlawful..     13 
Transit  privilege  is  beneficial  when  applied  with- 
out discrimination  

Privilege  conditioned  only    upon    use    to    which 

commodity  is  put  unlawful ^^ 


ri 


II     NATURE  OF  SERVICE 

Service  same  as  two  local  shipments 16 

Illustration  17 

Method  of  assessinc;  freight  charges 18 

Services    rendered     remedy   an   artificial    disad- 
vantage   19 


III     JURISDICTION  OF  THE  COMMISSION. 

Has  no  authorit}'  to  re(]nire  granting  of  milling  in 

transit  privilege - 20 

Has  no  authority  to  require  granting  of  milling 

in  transit  privilege 21 

Has  no  authority  to  grant  privilege  corresponding 

to  milling  in  transit  privilege 22 

Has  authority  to  remove  unjust  discrimination  in 

transit  privileges 23 

When  reconsignment  charge  is  within  jurisdic- 
tion   - 24 

When  reconsignment  charge  is  not  within  juris- 
diction    - 25 

Intention  to  reconsign  within  Ihe  state  after 
delivery  exempt  from  jurisdiction  of  Cora- 
mission 26 

Jurisdiction  over  compression  of  cotton 27 

Jurisdiction  to  award  damages  for  unlawful  dis- 
crimination in  elevator  allowances 28 

Reparation  awarded  for  unlawful  discrimination 

in  elevator  allowances 29 

Supreme  Court  rules  allowances  for  elevation  are 

under  jurisdiction  of  the  Commission 30 


Ill 


Amendment  of  1906  gave  the  Commission  plenary 

powers  over  transit 31 

May  require  accounting  of  Interstate  and  Intra- 
state transit  and  non-transit  tonnage 32 


IV     ALLOWANCE  OF  PRIVILEGES 

Allowance  depends  upon  facts  in  particular  case..  33 

^Milling  in  transit  is  a  privilege  not  a  right 34 

Purposes  for  which  allowed : 

Grading  and  sorting  of  merchandise 35 

Cleaning  and  sacking  grain 36 

Elevation  37 

Compression  of  cotton 38 

To  mill  owner  who  controls  connecting  road... 39 

May  lawfully  refuse  to  allow  privilege 40 

May  lawfully  refuse  to  allow  privilege 41 

Treatment  or  reconsignment  in  transit  a  privilege 

not  a  right 42 

Reconsignment  a  privilege  not  a  right 43 

On  acid  phosphate  and  phosphate  rock 44 

May  withhold  privilege  from  different  products  of 

same  raw  material 45 

After  lapse  of  two  years  cannot  order  it  restored 

nnless  resting  upon  some  legal  obligations....  46 
Petition  for  rehearing  in  above  two  cases  denied..  47 
Extension  of  privilege  into  new  territory  not  gen- 
erally allowed 48 

Extension  of  privilege  into  new  territory  to  be 

curtailed  rather  than  extended 49 


IV 


V     AGREEMENT    BETWEEN    CONNECTING     CAR- 
RIERS FOR  ALLOWANCE  OF  PRIVILEGE 

Carrier  may  refuse  to  become  party 50 

Carriers  may  agree  with  logging  roads  for  privi- 
lege to  industries  thereon 51 


VI     CONTRACTUAL    RELATION    BETWEEN    SHIP- 
PER AND  CARRIER 

Abrogation  of  privilege  would  confiscate  property  52 
Contract  for  allowance  of  privilege  is  enforceable  53 
Carrier  cannot  alter  relation  when  once  estab- 
lished    54 


VII     PUBLICATION  CONDITION  PRECEDENT  TO 
LEGALITY 

Terms  of  privilege  should  be  stated  in  tariff 55 

Terms  of  privilege  should  be  stated  in  tariff 56 

Terms  of  privilege  should  be  stated  in  tariff 57 

Terms  of  privilege  should  be  stated  in  tariff 58 

Publication  of  privilege  required  by  Section  6  of 

the  Act  as  amended 59 

Publication  of  all  transit  privileges  subsequently 

ordered  by  Commission 60 

Act  requires  publication  of  privilege 61 

Failure  to  publish  cause  for  refusal  of  reparation 

to  injured  party  in  unlawful  contract 62 

Privileges  granted  without  publication  in  violation 

of  the  law 63 

Can  not  be  enforced  against  carrier  in  absence  of 

published  tariffs 64 


VIII     CHARGES  FOR  ALLOWANCE  OF  PRIVILEGE 

Extra  compensation  for    permitting    milling    in 

transit   65 

Extra  compensation  for  treatment  and  reconsign- 

ment  privileges 66 

Charge  should  not  exceed  actual  cost — (reversed)     67 

Entitled  to  compensation  in  addition  to  actual  cost     68 

Charge  for  privilege  should  be  in  proportion  to 

service  69 

Particular  facts  of  each  case  to  govern 70 

Carrier  not  required  to  perform  back  haul  with- 
out reasonable  compensation  therefor 71 

Charges  for  the  transit  privilege  should  be  non- 
discriminatory       72 

Reasonable    reconsignment    charge    where    only 

name  of  consignee  is  changed 73 

Reasonable  reconsignment  charge  where  destina- 
tion is  changed 74 

Illustrations  of  reasonable  charges  for  reconsign- 

ing 75 

Claim  for  refund   reconsignment  charge  due  to 

defective  tariff  dismissed 76 

Powers  of  Commission  to  restrict  allowances  for 

elevation  to  shipper 77 

Commission  recommends  elevation  allowances......     78 

Distinction  between  charges  for  commercial  and 

transportation  elevation  79 


VI 


IX     ABSORBING  Oil  DIMINISHING  LOCAL  OR  PRO- 
PORTIONAL INBOUND  RATE 

Rate  "in"  cannot  be  absorbed  or  diminished  by 

"out"  rate  not  in  effect  when  shipment  moved     80 


X     DISCRIMINATION  BETWEEN  SHIPPERS 

Carrier  must  not  discriminate 81 

Privilege,  when  allowed,  must  be  extended  to  all 

shippers  alike  82 

Privilege  will  not  be  established  or  extended  in 

absence  of  discrimination.... 83 

Must  not  discriminate  between  shippers  in  an- 
other section  served  by  its  line 84 

Discrimination  in  rules  and  interpretation  thereof 

between  shippers 85 

Discrimination  in  rules  and  interpretation  thereof 

between  shippers  86 


XI     DISCRIMINATION  BETWEEN  LOCALITIES 

Not  necessarily  unlawful  87 

Not  necessarily  unlawful  88 

Not  undue  where  conditions  differ 89 

Not  unjust  where  there  is  a  dissimilarity  of  con- 
ditions     90 

Does  not  necessarily  constitute  undue  prejudice..  91 

Where  rates  are  not  unreasonable 92 

Where  conditions  are  substantially  dissimilar 93 

Where  disadvantage  is  not  the  result  of  unjust 

discrimination    94 


VII 


Where  only  one  of  several  defendants  serves  all 

points   involved   05 

Where  conditions  are  not  alike 05 

Equalization  of  advantages  of  localities 00 

Not  within  province  of  Commission  to  overcome 

disadvantages  of  location  by  adjustment  of 

transportation  charges  97 

Not  within  province  of  Commission  to  take  away 

advantages   of  location 98 

Where  discrimination  is  unlawful  between  localities  99 
Where  discrimination  is  unlawful  between  localities  100 
Where  discrimination  is  unlawful  between  localities  101 
Where  discrimination  is  unlawful  between  localities  102 
Where  discrimination  is  unlawful  between  localities  103 
Where  discrimination  is  unlawful  between  localities  104 
Where  discrimination  is  unlawful  between  localities  105 
Where  discrimination  is  unlawful  between  localities  106 
Where  discrimination  is  unlawful  between  localities  107 
Where  discrimination  is  unlawful  between  localities  108 
Where  discrimination  is  unlawful  between  localities  109 
Where  discrimination  is  unlawful  between  localities  110 
Export  rate  on  grain  compared  to  export  rate  on 

flour  milled  in  transit Ill 

Allowance  of  privilege  must  be  without  unjust 

discrimination 112 

Allowance  of  privilege  must  bo  without   unjust 

discrimination 113 

Allowance  of  privilege  must  be  without   unjust 

discrimination   114 

Discrimination  may  be  justified  by  competition...  115 


VIII 


XII     DOING  BUSINP^SS  UNDER  OPEN  RATES 

As  distinguished  from  milling  in  transit 116 

Relation  of  milling  in  transit  rates  at  one  point 

to  open  rates  established  at  rival  point 117 


XIII     RECONSIGNING 

Reconsigning  to  secure  benefit  of  through  rate 

lower  than  combination 118 

Reconsigning  to  test  the  market 119 

Reconsigning  is  a  privilege  not  a  right 120 

Reconsigning    includes    changes    in    destination, 

routing  or  consignee 121 

Reconsignment  on  shipper's  order  of  part  lots  of 

consignment  of  goods  held  in  storage 122 

Carrier  liable  upon  refusal  to  reconsign  according 

to  published  rules 123 

Reconsignment  rate  higher  than  the  proportion  of 

the  through  rate 124 

Reshipping  rate  from  primary  grain  market 125 

Can  not  enforce  demurrage  enroute  while  parley- 
ing with  connections 126 


XIV     RATE  TO  BE  APPLIED  ON  RESHIPPED  COM- 
MODITY 

Through  rate  plus  charge  for  privilege 127 

Changes  in  rates  do  not  affect  shipments  in  course 

of  transportation  128 

Through  rate  in  effect  at  time  shipment  first  moved  129 


IX 


Rule    in    tariff   providing    rate    applicable    from 

reshipping  point  not  sanctioned 130 

Rate  applied  on  shipments  refused  by  consignees 

or  damaged  in  transit 131 

Rate  applied  on  shipments  refused  by  consignees 

or  damaged  in  transit 132 

Rate  applied  on  shipments  refused  by  consignees 

or  damaged  in  transit 133 

Rate  applied  on  shipments  refused  by  consignees 

or  damaged  in  transit 134 

Rates  must  be  applied  only  via  the  route  over 

which  shipment  moved 135 

Carrier  liable  for  overcharge  due  to  misrouting 

transit  shipment  136 

Reconsignment  rates  optional  with  carrier  un- 
lawful    137 

Shipment  that  moved  in  under  a  former  tariff 
does  not  lose  the  benefit  of  through  transit 
rate  cancelled  pending  the  out  movement 138 

Shipment  that  moved  in  under  a  former  tariff 
does  not  lose  the  benefit  of  through  transit 
rate  cancelled  pending  the  out  movement 139 

Through  transit  rate  not  availed  of  cannot  be 
renewed  after  the  expiration  of  the  time 
allowed  in  the  tariffs 140 

Strict  compliance  with  rules  necessary  to  use  of 

privilege 141 

New  policing  rules  apply  to  all  tonnage 142 

Through  transit  rate  will  not  be  given  a  retroac- 
tive effect 143 

Through  transit  rate  will  not  be  given  a  retroac- 
tive effect 144 

Through  transit  rate  will  not  be  given  a  retroac- 
tive effect 145 


X 


Through  transit  rate  will  not  be  given  a  retroac- 
tive effect 146 

Through  transit  rate  will  not  be  given  a  retroac- 
tive effect 147 

Through  transit  rate  will  not  be  given  a  retroac- 
tive effect - 148 

Through  transit  rate  will  not  be  given  a  retroac- 
tive effect 149 

Through  transit  rate  will  not  be  given  a  retroac- 
tive effect 150 

Rates  applicable  where  goods  destroyed  while  sus- 
pended in  transit 151 

Eates  applicable  to  shipments  stopped  short  of 

intended  destination  152 


XV     SUBSTITUTION 


Necessity  for  substitution 153 

Impracticable  to  reforward  identical  carload  of 

grain 154 

Tariff    rule    providing    for    equivalent    tonnage, 

cement  or  plaster,  held  to  be  unlawful 155 

Rule  76  Tariff  Circular  17-A  not  too  strict 156 

Substitution  after  discontinuance  of  bankruptcy 

proceedings  157 

Cross  billing  is  a  technical  discrimination  and  is 

not  undue  158 

Tariffs  may  be  adjusted  to  legalize  necessary  sub- 
stitutions and  cross  billing 159 

Unlawful  substitutions  enumerated 160 

Commercial   conditions   render  it   impossible   to 

reship  the  identical  commodity 161 

Substitution  under  C.  F.  A.  grain  rules  discussed..  162 


XI 


XVI     POLICING 

Carrier  and   shipper  held   alike  responsible  for 

abuses  in  substitution 163 

Duty  of  shipper  to  submit  to  policing 164 

Duty  of  Commission  to  supervise  and  regulate 165 

Transit  rules  should  be  uniform 166 

Commission's  rules  for  policing 167 

Approval  of  bureaus  for  policing  purposes 168 

Approval  of  bureaus  for  policing  purposes 169 

Records   170 

Certificates   171 

Daily  reports  172 

Daily  reports  173 

Expense  bills 174 

Daily  cancellation  of  billing , 175 

Time  limit  176 

Wastage  177 

Wastage 178 

Mixed  feed -  179 

Dissenting   opinion    pertaining    mixture    transit 

and  non-transit  commodities 180 

Mixture  non-transit  and  transit  assists  small  mills  181 

XVII     CARRIER'S  DUTY  TO  FURNISH  CARS 

Dutv  to  furnish  equipment  rests  upon  inbound 

carrier   -'■°-' 

Table  of  Cases  Cited 139 

Act    to    Regulate    Commerce    (including    Interpretations 

Thereon  Pertaining  to  Transit  Privileges) 147 


XIII 


FOKEWORD. 

The  law  pprtaininn;  to  transit  privilpsjes,  as  intorprotorl  by 
the  Interstate  Commerce  Commission  and  the  Federal  Courts, 
is  declaratory  of  certain  customs  which  have  existed  for  many 
years  but  the  Commission  has  safejninrded  these  customs  by 
riirid  policincj  rules  so  as  to  prevent  discrimination.  If  these 
policing  rules  are  enforced  effectively  a  transit  rate  will  be 
ideal  in  that  it  will  place  all  such  points  of  manufacture  and  as- 
semblinii:  upon  a  parity. 

The  Federal  Statutes  condemn  unreasonable  and  dis- 
criminatory rates.  The  early  opinions  of  the  courts  however 
looked  solely  to  the  reasonableness  of  the  rate  and  recognized 
no  rate  as  discriminatory  as  such.  Later  the  courts  ruled 
against  unreasonable  differences  and  finally,  today,  outright 
discrimination  as  well  as  unreasonableness  is  universally  con- 
demned. The  rule  against  discrimination  as  such  is  therefore 
new.  There  has  been  such  a  rapid  development  of  manufacture, 
transportation  and  commerce  in  this  country  within  the  past 
decade  that  the  legislatures  and  courts  have  found  difficulty 
in  keeping  pace  with  the  new  order.  The  doctrine  of  discrim- 
ination has  been  incorporated  in  our  statute  to  prevent  dis- 
criminatory practices  in  favor  of  the  large  shipper  against  the 
smaller. 

There  can,  however,  be  no  such  thing  as  an  ideal  non- 
discriminatory rate  where  one  general  rule  of  compilation  is 
enforced  universally.  The  class  rate  basis  which  groups  the 
different  commodities  in  various  classes  is  the  fundamental 
principle  of  our  rate  structure.  This  is  the  general  practice 
throughout  the  entire  country.  As  an  exception  to  this  gen- 
eral rule  we  have  the  commodity  rate;  namely  a  rate  which 


XIV ^ 

takes  the  commodity  out  of  its  class  and  accords  it  a  partic- 
ular rating.  It  affords  the  particular  industry  a  broad 
field  for  the  marketing  of  its  product  and  at  the  same  time  nets 
the  carrier  a  fair  return  for  the  services  performed.  A  com- 
modity rate  is  predicated  upon  the  needs  of  a  particular  in- 
dustry, and  opens  our  markets  to  the  widest  possible  competi- 
tion.   Any  attempt  to  abolish  it  would  be  commercial  folly. 

Neither  the  class  nor  commodity  rates  however  are  founded 
upon  any  scientific  theory  but  rather  have  been  the  outcome  of 
long  years  of  experience  in  transportation  and  commerce.  They 
have  been  made  to  meet  the  development  of  the  various  sections 
of  the  country.  As  was  said  in  the  Burnham,  Hanna,  Hunger 
Dry  Goods  Com'pany  case  14  I.  C.  C.  Kep.  299 : 

"As  railroads  were  constructed  into  the  undeveloped 
west  and,  for  a  time  at  least,  had  their  western  termini 
at  the  east  bank  of  the  Mississippi  River,  it  seems  natural 
that  when  the  river  was  crossed,  and  rates  were  established 
to  points  beyond,  they  should  be  constructed  by  adding 
certain  sums  to  the  rates  already  established  to  the  river, 
and  as  additional  lines  were  built  and  additional  railroad 
crossings  over  the  Mississippi  River  were  constructed, 
competition  between  carriers  and  localities  naturally 
("stablished  common  I'ates  to  the  Mississippi  River  cross- 
ings, especially  when  applied  to  traffic  going  beyond. 

As  the  west  was  fui'ther  developed,  Ibis  same  condi- 
tion and  like  results  followed  at  the  several  crossings  of 
the  Missouri  River,  so  that  today  the  rates  from  the  Miss- 
issippi River  crossings  to  the  Missouri  River  crossings, 
Kansas  City  to  Omaha,  inclusive,  are  the  same,  and  from 
points  east,  to  the  ISIissouri  River  Cities,  are  the  same  via 
any  of  the  Mississippi  River  crossings.  East  St.  Louis  to 
East  Dubuque,  inclusive." 

This  method  of  compilation  by  which  the  rates  are  broken 
at  certain  crossings  or  gateways,  as  for  instance  cities  on  the 


XV 

Missouri,  Mississippi  and  Ohio  Rivers,  or  other  arbitrary  points, 
is  such  that  it  can  not  be  applied  universally  over  such  a  wide 
expanse  of  territory  as  the  United  States  and  cover  such  a 
diversity  of  interest  without  beinjjj  discriminatory  in  some 
respects. 

The  principal  deficiency  is  that  the  sum  of  the  two  local 
rates  is  greater  than  the  through  rate  except  at  certain  rate 
breaking  points.  As  all  products  must  be  concentrated  or  as- 
sembled at  some  point  en  route  for  manufacture  or  for  other 
purposes  this  basis  would  seem  to  be  impracticable  in  that  it 
would  confine  manufacturing  or  assembling  to  the  primary  point 
of  origin  or  to  an  established  rate  breaking  point  or  to  the  ul- 
timate place  of  consumption.  This  is  overcome  to  a  certain 
extent  by  making  a  lower  bases  of  rates  on  the  raw  materials 
into  the  plant  than  on  the  manufactured  product  outbound. 
The  raw  materials,  generally  speaking,  load  heavier,  are  less 
valuable  and  less  susceptible  to  damage  from  a  transportation 
standpoint. 

We  have  another  exception  to  the  general  rule  in  what  is 
known  as  the  transit  privilege,  namely ;  the  privilege  of  allowing 
the  owner  of  the  freight  to  stop  the  car  en  route,  unload  the  con- 
tents for  the  purpose  of  manufacturing,  cleaning,  assorting, 
grading  or  doing  other  legitimate  work  thereon,  and  then  reload 
and  reforward  to  final  destination.  One  through  rate  of 
freight  is  paid  from  primary  point  of  production  to  final 
destination  plus  a  reasonable  charge  for  the  stopover  privilege. 

In  fact,  in  most  of  these  cases  where  the  transit  privilege 
is  allowed  the  inbound  material  is  inherently  and  substantially 
the  same  as  the  outbound  from  a  transportation  standpoint. 
As  for  example  wool  before  and  after  it  is  assorted  and  graded, 
timber  before  and  after  it  is  dressed,  structural  steel  before 
and  after  it  is  fabricated  and  cotton  before  and  after  it  is 
compressed.  On  wheat  and  flour,  however,  there  is  a  dis- 
similarity in  the  two  commodities. 


XVI 

III  liniiiic  llicsc  transit  privileges  appear  to  be  neither  sound 
in  theory  nor  practice.  The  Commission  in  the  first  year  of  its 
existence  suggested  that  the  Act  did  not  sanction  such  privi- 
leges, and  also  suggested  litigation  if  they  were  not  discon- 
tinued. Yet  the  deeper  we  dig  into  this  subject  the  more  clearly 
do  we  recognize  as  confiscatory  any  rule  that  would  do  away 
with  the  privilege  as  it  now  exists  and  equally  as  confiscatory 
any  rule  that  would  extend  the  privilege  where  it  does  not  exist. 

It  has  been  suggested  as  an  alternative  for  the  transit 
privilege  that  the  railroads  yield  slightly  in  their  local  rates 
to  and  from  point  of  stoppage  or  to  rate  these  transit  com- 
modities similar  to  other  products — namely  make  a  higher  basis 
on  the  outbound  than  on  the  inbound.  Commercial  conditions 
rendered  this  impracticable  on  certain  few  commodities.  Let 
us  take  wheat  and  flour  as  an  example  where  commercial  con- 
ditions make  it  necessary  that  there  should  be  a  common  rate 
on  both  although  from  a  transportation  standpoint  the  elements 
of  classification  are  dissimilar.  Some  years  ago  the  railroads 
differentiated  the  common  rate  on  export  fiour  and  wheat  which 
common  rate  had  existed  for  many  years  prior  thereto.  The 
rates  on  export  flour  were  advanced  from  four  to  eleven  cents 
higher  than  wheat.  The  export^  flour  industry  of  the  northwest 
was  threatened  wdth  destruction.  It  soon  became  evident  that 
it  was  impracticable  to  rate  these  commodities  similar  to  the 
general  rule.  Experience  showed  further  that  the  industries 
could  not  live  unless  relief  was  granted  by  allowing  the  wheat 
to  be  milled  in  transit.  Consequently  transit  on  grain  has 
become  universal — it  has  proved  beneficial  to  the  farmer,  to 
the  railroads  and  to  the  public.  It  diffuses  small  mills  all 
over  the  country  and  it  enables  the  farmer  to  market  his  wheat 
with  profit.  Further,  grain  products  cannot  ordinarily  be 
taken  directly  from  the  field  to  the  consumer,  they  must  be 
stored  and  sold  at  some  concentrating  point.  Elevation  of  grain 
in  transit,  permiting  the  immediate  unloading  of  the  cars  and 
their  immediate  return  to  the  farmer— is  equally  beneficial  to 
all  concerned. 


XVII 

The  stopping  of  wool  in  transit  is  also  a  fair  example  of 
the  necesity  for  the  transit  privilege.  There  are  many  grades  of 
wool  in  the  same  fleece  and  many  grades  in  the  same  flock. 
It  is  necessary  that  large  quantities  of  wool  be  concentrated  at 
some  point  en  route  for  the  purpose  of  assorting  and  grading. 
Under  the  general  rate  structure  the  concentration  may  be 
done  in  transit  at  St.  Louis  or  Chicago  without  additional 
freight  cost  because  the  tariffs  are  so  constructed  as  to  break 
at  these  points,  while  if  concentrated  at  Detroit  the  sum  of  the 
two  locals  in  and  out  would  be  prohibitive  in  comparison  with 
the  through  overhead  rate.  It  is  quite  obvious  that  this  disability 
of  Detroit  is  due  to  an  artificial  circumstance.  The  in  and  out- 
bound commodities  are  similar  from  a  transportation  stand- 
point. Accordingly  concentration  in  transit  is  permissible  at 
all  points  where  needed  en  route. 

Likewise  cotton  is  compressed  in  transit.  Cotton  as  mar- 
keted by  the  producer  is  in  a  uncompressed  state — it  is  neces- 
sary to  submit  the  coton  to  high  pressure  so  as  to  increase  the 
density  of  the  cotton.  This  process  can  only  be  done  at  com- 
paratively few  points.  The  cost  of  the  machinery  for  doing  the 
compression  is  very  high.  Comjiression  in  transit  on  the  basis 
of  the  through  rate  is  beneficial  to  all  concerned.  It  benefits  the 
transportation  company — the  freight  is  densified — it  ben- 
efits the  grower  as  the  cotton  buyer  can  purchase  his 
cotton  direct — have  it  compressed  and  graded  in  transit 
and  send  it  to  its  destination — it  also  remedies  a  sys- 
tem of  rates  in  the  south  vrhich  discriminates  in  favor  of 
certain  trade  centers  thus  accomplishing  in  one  way  what  the 
statute  was  intended  to  cover  in  another — namely  prevent 
discrimination. 

Therefore  to  meet  the  nec(*ssities  of  comnuM-ce  wlit'i'cin  our 
present  basis  of  rates  in  constructing  the  sum  of  locals  greatly 
in  excess  of  the  through  rate  cannot  be  enforced  without  de- 
stroying commerce,  grain  of  all  kind  is  milled  in  transit,  flour  is 
blended,  cotton  is  compressed,  wool  is  assorted  and  graded,  corn 


XVIII 

is  treated,  struetnral  steel  is  fabricated,  lumber  is  dressed  and 
perliaps  otherwise  inanufactured,  live  stock  is  fed  and  grazed 
and  also  stopped  off  to  test  the  market.  Based  npon  these 
particular  practices  hundreds  of  millions  of  dollars  have  been 
invested  and  the  privileges  could  not  be  discontinued  without 
impairing  enormous  values. 

As  the  abrogation  of  the  transit  pi-ivilege,  wherever  it  now 
exists  would  be  an  unjuslitiable  confiscation  of  property  values, 
so  an  extension  of  the  privilege  on  other  commodities  would 
likewise  confiscate  the  revenues  of  the  great  transpor- 
tation interest.  ^' There  is  a  limit  to  the  commodities 
that  can  he  reaso7}ahh/  milled  in  transit."  It  has  been  allowed 
in  cases  where  the  necessities  of  the  particular  commodity 
justify  it  and  where  it  has  proved  beneficial  to  the  carrier, 
the  public  and  the  dealer.  The  test  of  its  allowances  is — is  it 
necessary  for  the  life  of  that  particular  trade,  and  not 
is  it  convenient?  If  commercial  experiences  show  that  the 
privilege  has  not  been  necessary  heretofore  on  any  particular 
commodity  to  extend  it  to  other  commodities  would  mean  the 
unwarranted  destruction  of  railroad  revenues  and  the  impair- 
ment of  values  of  industries  that  have  grown  under  another 
bases  of  rates.  It  is,  therefore,  self  evident  transit  has  come  to 
stay  on  those  commodities  where  it  is  necessary  for  the  preser- 
vation of  the  life  of  the  particular  industries,  but  it  is  not  likely 
to  be  extended  to  products  other  than  those  upon  which  the 
privilege  has  already  been  allowed. 

The  safe  guarding  of  the  transit  privileges  so  as  to  prevent 
discrimination  is  one  of  the  most  perplexing  matters  the  Com- 
mission has  had  to  meet.  The  contract  of  transportation  is 
a  unit  of  service.  It  begins  when  the  goods  are  delivered  to 
the  cari'ier  and  it  terminates  when  the  goods  are  delivered  by 
the  carrier.  The  lading,  during  the  entire  life  of  the  bailment, 
is  under  the  control  of  the  carrier.  With  the  transit  privilege 
the  transportation  is  suspended  at  some  point  short  of  final 
destination — the  lading  is  removed,  the  goods  are  manufactured 


XIX. 

assorted  or  fabricated  or  other  legitimate  work  done  thereon 
and  afterwards  reshipped  in  another  car  and  sent  to  its  final 
destination  under  the  original  contract.  During  the  suspension 
at  transit  point  an  opportunity  is  offered  for  substituting 
products  other  than  those  which  moved  in  under  the  transit 
rate,  or  substituting  products  different  from  those  covered  by 
original  contract  of  transportation.  These  abuses,  among  other 
things,  all  tend  to  impair  the  integrity  of  the  through  rate,  and 
open  the  avenues  of  commerce  to  discrimination.  The  new  rules 
as  promulgated  by  the  Commision,  if  properly  inforced,  should 
prevent  abuses  of  the  privilege  in  which  case  we  should  have  an 
ideal  situation  in  our  rate  structure — namely  a  truly  non-dis- 
criminatory rate.  As  under  the  privilege  all  shippers  of  like 
commodities  are  on  a  parity. 

The  purpose  of  this  digest  is  to  collect  and  bring  up  to  date 
all  of  the  decisions  of  the  Federal  Courts  and  the  Interstate 
Commerce  Commission  as  they  deal  with  transit  privileges. 


Charles  S.  Belsterling. 


Pittsburg,  Pa., 

January  1,  1913. 


DIGEST  OF  DECISIONS 

IN  THE  MATTER  OF 

Transit  PrivileQ;es 


1.  Legality. 

II.  Nature  of  Service. 

III.  Jurisdiction  of  the  Commission. 

IV.  Allowance  of  Privileges. 

V.     Agreement  Between  Connecting  Carriers  for  Allow- 
ance of  Privilege. 

VI.  Contractual  Relation  Between  Shipper  and  Carrier. 

VII.  Publication  Condition  Precedent  to  Legality. 

VIII.  Charges  for  Allowance  of  Privilege. 

IX.     Absorbing  or  Diminishing  Local  or  Proportional  In- 
bound Rate. 

X.  Discrimination  Between  Shippers. 
XL     Discrimination  Between  Localities. 
XII.     Doing  Business  Under  Open  Rates. 

XIII.  Reconsigning. 

XIV.     Rate  to  be  Applied  on  Reshipped  Commodity. 

XV.  Substitution. 
XVI.     Policing. 

XVII.  Can-ier's  T>utv  to  Fnrnisli  Cars. 


I.     LEGALITY. 

COMMISSION    CONTENDED   ORIGINALLY   ACT   DOES    NOT    SANC- 
TION TRANSIT  PRIVILEGES. 

1.  The  third  section     *     *     *     makes  it  unlawful 

*  *  *  to  give  any  undue  or  unreasonable  prefer- 
ence or  advantage  to  any  particular  locality.  The 
question  may  be  raised  under  this  section  whether  it 
would  not  be  unlawful  for  a  carrier  to  give  the  privi- 
lege of  milling  in  transit  to  one  town  on  its  line  and 
deny  it  to  others ;  *  *  *  We  shall  refrain  entirely 
from  expressing  any  opinion  *  «  *  The  carrier 
will  be  apprised  that  the  concession  may  not  unlikely 
be  followed  by  controversies  *  *  *  possibly  by 
litigation. 

Crews  vs.  Richmond  d  D.  R.  R.  Co.,  1 1.  C.  C.  Kep., 
490  (1887),  Kep.,  703  (1888). 


COMPRESSION  OF  COTTON  IN  TRANSIT  NOT  UNLAWFUL. 

2.  A  railroad  company  is  not  guilty  of  an  unlawful 

discrimination  or  preference  in  violation  of  Sections  2 
and  3  of  the  Interstate  Commerce  Act  by  receiving  cot- 
ton from  a  shipper  at  Delhi,  La.,  shipping  it  to  Vicks- 
burg,  having  it  compressed  there  at  the  Company's  ex- 
pense, and  reshipped  to  eastern  points,  where  such  an 
arrangement  is  in  compliance  with  a  recognized  cus- 


-2— 


torn,  of  which  all  other  shippers,  including  the  peti- 
tioner, could  or  did  avail  themselves,  and  where  it  does 
not  appear  that  the  petitioner  desired  to  ship  any  cot- 
ton from  Delhi  to  the  eastern  points,  or  that  he  was 
compelled  to  pay  a  higher  rate  under  similar  circum- 
stances. 

Coican  vs.  Bond,  39  Fed.  Hep.,  55,  2  I.  C.  C.  Rep., 
542  (1889). 


FLOATING  COTTON  IN  TRANSIT  NOT  UNLAWFUL. 

3.  Before  the  practice  of  floating  cotton  was  inaug- 

urated in  territory  adjacent  to  Memphis,  Tenn.,  cotton 
was  sent  to  Memphis,  there  to  be  compressed  and  for- 
warded to  point  of  consumption.  Compresses  were 
later  established  at  adjacent  points,  and  the  practice 
which  followed  of  floating  cotton  at  such  points  made 
it  possible  to  compress  and  forward  the  cotton  to  mar- 
ket as  cheaply  as  could  be  done  by  sending  it  to  Mem- 
phis. Under  this  system  the  cotton  was  delivered  to 
the  carrier  at  the  producing  point,  from  which  it  was 
carried  to  a  compress  point  where  it  was  graded  and 
compressed.  It  was  then  reloaded  and  carried  to  des- 
tination under  the  published  through  rate  from  point 
of  origin.  After  compression  the  cotton  seldom  if 
ever  went  forward  in  the  same  car.  In  many  cases  it 
was  diverted  to  some  other  destination  than  that  called 
for  when  the  cotton  was  first  received.  The  practice 
resulted  in  saving  to  the  carrier.  It  also  benefited  the 
grower.  Memphis  contended  that  such  shipments 
were  not  through  shipments  from  point  of  origin,  and 


— 3— 

should  therefore  pay  the  local  rate  from  point  of  origin 
to  point  of  compress  and  the  published  rate  from  the 
latter  point  to  destination.  This  would  have  caused 
tlic  cotton  to  ixo  to  Memphis.  Held:  That  the  ship- 
ments from  point  of  origin  were  through  shipments, 
and  that  the  movement  to  the  compress  was  strictly 
part  of  the  through  movement;  that  the  practice  was 
not  in  violation  of  the  act. 

Re  Alleged  Unlaivful  Rates  and  Practices  in 
Transportation  of  Cotton,  8  I.  C.  C.  Rep.,  121 

(1899). 

TRANSIT    PRIVILEGES    WHEN    REASONABLE    NOT    IN    VIOLA- 
TION OF  THE  ACT. 

4.  At  the  present  time  the  principle  of  milling  in 
transit  is  applied  to  the  movement  of  many  commodi- 
ties. Under  this  or  some  equivalent  arrangement 
grain  of  all  kinds  is  milled  and  otherwise  treated  in 
transit ;  flour  is  blended,  cotton  is  compressed,  lumber 
is  dressed  or  otherwise  manufactured,  live  stock  is 
stopped  oft"  to  test  the  market.  Where  such  arrange- 
ments are  reasonable,  they  are  not  in  violation  of  the 
Act. 

Central  Yelloiv  Pine  Assn.  vs.  Yickshurg,  S.  cC-  P. 
Rij.  Co.  et  al.,  10  I.  C.  C.  Rep.,  193  (1904). 

TRANSIT    PRIVILEGES    HAVE    CHEAPENED    COST    OF    TRANS- 
PORTATION AND  PROBABLY  OF  MANUFACTURE. 

5.  Nor  is  it  a  forced  construction  of  the  statute  to 
hold  that  when  the  product  finally  goes  forward  to  the 


point  of  consumption  it  but  completes  the  journey 
upon  which  it  entered  when  the  raw  material  was 
taken  up.  There  can  be  no  doubt  that  the  application 
of  this  principle  has  cheapened  the  cost  of  transporta- 
tion and  probably  of  manufacture. 
Ibid. 

THERE  IS  A  LIMIT  TO  PRODUCTS  THAT  CAN  BE  REASONABLY 
MILLED  IN  TRANSIT. 

6.  There  is,  of  course,  a  limit  to  the  products  which 
can  reasonably  be  included  in  the  list  of  those  which 
will  be  transported  at  the  raw  material  rate,  either 
with  or  without  a  transit  privilege.  It  might  be  rea- 
sonable to  withhold  transit  privileges  from  a  product 
that  is  essentially  different  from  the  raw  material  and 
from  the  other  products  of  the  same  raw  material 
which  are  accorded  transit  rates,  as  for  example  a 
liquid  product  of  grain. 

Douglas  d  Co.  vs.  C.  R.  I.  tC-  P.  et  al.,  16  I.  C.  C. 
Rep.,  232  (1909). 

MILLING   GRAIN   IN   TRANSIT   NOT   UNLAWFUL. 

7.  A  rule  which  provides  that  grain  shipped  through 
from  point  of  origin  to  point  of  final  destination  may 
be  stopped  at  an  intermediate  point  for  cleaning,  sack- 
ing or  other  legitimate  purpose,  the  shipment  after- 
wards carrying  a  proportional  or  balance  of  a  through 
rate,  is  not  unlawful. 

Re  Rates  and  Practices  of  Mobile  d  Ohio  R.  R.  Co., 
9  I.  C.  C.  Rep.,  373  (1903). 


5— 


FEEDING  AND  GRAZING  STOCK  IN  TRANSIT  NOT  UNLAWFUL. 

8.  In  connection  with  the  published  privilege  of  feed- 
ing and  grazing  in  transit  a  carrier  may  lawfully  pro- 
vide in  its  tariffs  that  it  will  furnish  feed  at  current 
market  prices  and  bill  the  cost  thereof,  together  with 
an  addition  of  10%  or  other  reasonable  percentage  to 
cover  the  value  of  its  service  as  advanced  charges. 

Rule  n  Con.  Rul.  Bui.  No.  5  (1908). 

FABRICATION  OF  STRUCTURAL  STEEL  IN  TRANSIT  NOT  UN- 
LAWFUL. 

9.  Since  the  hearing  several  defendants  have  issued 
tariffs  allowing  stoppage  in  transit  at  Indianapolis 
for  fabrication  of  structural  iron  and  reshipping  at 
the  through  rate  from  point  of  origin  to  final  destina- 
tion, provided  Indianapolis  is  intermediate,  a  charge 
of  II/2C  per  100  pounds  to  be  made  for  the  incidental 
service.  In  view  of  this  development,  the  complaint 
as  to  this  feature  is  dismissed  without  prejudice. 

Indianapolis  Freight  Bureau  vs.  Cleveland,  C.  C. 
&  St.  L.  Rwy.  Co.  et  ah,  15  I.  C.  C.  Rep.,  370 
(1909). 

ASSORTING   AND   GRADING   OF   WOOL   IN  TRANSIT  NOT   UN- 
LAWFUL. 

10.  In  preparing  wool  for  the  spinner  it  must  be  as- 

sorted and  graded,  so  that  the  factory  may  purchase 
the  kind  and  quality  which  is  needed  for  its  peculiar 
wants.     Since  there  are  different  grades  of  wool  in  the 


-6- 


saine  floeoo  and  many  different  grades  in  the  fleece  the 
same  flock,  it  becomes  necessary  that  large  quantities 
of  wool  shall  be  concentrated  for  the  purpose  of  assort- 
ing and  grading.  Transit  j^rivileges  should  be  allowed 
*     *     *     under  certain  restrictions. 

R.  R.  Coin,  of  Orc(/oii — National  Wool  Growers 
Assn.  vs.  Oregon  ^liort  Line  R.  R.  et  ah,  23  I. 
0.  C.  Rep.,  151  (1912). 

TREATING  CORN  IN  TRANSIT  NOT  UNLAWFUL   (BENEFICIAL 
TO  CARRIERS,  DEALERS  AND  THE  PUBLIC). 

11.  Transit  privileges  are  of  benefit  to  the  carriers, 
the  dealers,  and  the  public.  This  is  particularly  true 
of  corn,  which  must  be  put  in  proper  condition  for 
long  hauls  or  it  will  heat  or  freeze  in  transit,  according 
to  the  weather  and  be  subject  to  rejection  at  des- 
tination. 

Blodf/ett  Milling  Co.  vs.  C.  if.  d  8.  P.  Rwy.  et  al., 
23  I.  C.  C.  Rep.,  448  (1912). 

STORAGE    IN    TRANSIT    WlT?IOUT    CHARGE    THEREFOR    AND 
TIME  LIMIT  DISAPPROVED. 

12.  Its  attention  being  called  to  a  tariff  which  in  ef- 
fect, created  a  distributing  point  for  a  special  indus- 
try by  granting  it  free  storage  at  that  point,  either  in 
its  own  or  the  carrier's  warehouses,  and  practically 
without  limit  as  to  time,  the  merchandise  when  shipped 
out  on  the  balance  of  through  rate,  the  Commission 
expressed  its  disapproval. 

Rule  5  Con.  Rul.  Bui.  No.  5  (1907). 


ALLOWANCES  FOR  ELEVATION  IN  TRANSIT  NOT  UNLAWFUL 

13.  It  is  evident  that  if  the  payment  of  these  allow- 
ances were  stopped  at  certain  points  and  to  certain 
people,  while  continuing  at  other  points  and  to  other 
persons,  a  condition  of  discrimination  and  confusion 
mii?ht  result  which  would  be  much  worse  that  that 
intended  to  be  corrected  by  our  order  in  these  cases. 
It  has  therefore  been  decided  to  postpone  the  effective 
date  of  that  order  until  July  1,  1909,  and  to  recom- 
mend to  carriers  generally  that  any  action  contem- 
plated in  view  of  that  order  be  deferred  to  the  same 
date.  It  is  believed  that  if  all  parties  co-operate  the 
opinion  of  the  Supreme  Court  of  the  United  States 
can  be  obtained  within  that  time. 

Traffic  Bureau,  Merchants  Exchange  of  St.  Louis 
vs.  C.  B.  dc  Q.  R.  R.  Co.  et  al.,  14  I.  C.  C.  Rep., 
551  (1908). 

Supreme  Court  in  222  U.  S.,  42,  decided  that  al- 
lowances for  elevation  are  lawful  (See  Para- 
graph 30). 

TRANSIT  PRIVILEGE  IS  BENEFICIAL  WHEN  APPLIED  WITHOUT 
DISCRIMINATION. 

14.  Transit  in  many  cases  is  beneficial  in  its  applica- 
tion. When  it  can  be  applied  without  discrimination 
it  results  in  the  diffusion  of  business,  in  giving  to  rival 
communities  the  relative  advantages  to  which  they  are 
entitled,  and  which  can  be  accorded  them  in  no  other 
way,  and,  generally  speaking,  in  the  application  of 


-8— 


lower  transportation  charges.  The  commercial  opera- 
tions of  this  country  have  in  many  instances  grown  up 
under  the  exercise  of  transit  privileges  and  could  have 
been  developed  in  no  other  way.  This  Commission 
has  never  held  that  transit  was  to  be  condemned  in  so 
far  as  it  was  beneficial  and  could  properly  be  applied. 

Railroad  Comfnission  of  Oregon — National  Wool 
Grotcers  Association  vs.  Oregon  Short  Line 
R.  R.  Co.  et  ah,  23  I.  C.  C.  Rep.,  151  (1912). 

PRIVILEGE    CONDITIONED    ONLY    UPON    USE    TO    WHICH    COM- 
MODITY IS  PUT  UNLAWFUL. 

15.  Complaint  attacks  as  unreasonable  a  six  months' 

limit  in  connection  with  the  milling  in  transit  of  logs, 
etc.,  at  Memphis,  Tenn. ;  Held,  That  as  the  privilege 
is  conditioned  upon  the  use  to  which  the  commodity 
is  put,  it  should  not  be  sanctioned  by  an  award  of 
reparation.     Complaint  dismissed. 

Memphis  Freight  Bureau  et  al.  vs.  8t.  Louis  d  San 
Francisco  Railroad  Co.,  24  I.  C.  C.  Rep.,  602 
(1912). 


II.     NATURE  OF  SERVICE. 

SERVICE  SAME  AS  TWO  LOCAL  SHIPMENTS. 

16.  The  services  rendered  by  the  carrier  on  transit 
milled  freight  are  practically  identical  with  those  ren- 
dered in  delivering  and  receiving  distinct  shipments 
at  the  milling  point. 

Listmmi  Mill  Co.  vs.  Chicago,  Milwaukee  d  St. 
Paid  Ricy.  Co.,  8  I.  C.  C.  Rep.,  47  (1898). 

ILLUSTRATION. 

17.  Suppose  a  car  containing  50,000  lbs.  structural 
steel  is  shipped  from  Pittsburg  to  New  York  City  and 
fabricated  in  transit  in  Philadelphia,  Pa.  the  rate  from 
Pittsburg  to  New  York  City  is  16c  and  to  this  add 
iy2C  per  hundred  for  the  transit  privilege  in  Philadel- 
phia; this  would  make  a  total  rate  of  17y2C  per  100 
lbs.  from  Pittsburg  to  New  York  City  against  the  sum 
of  the  locals— 15c  in  and  9c  out  equalling  24c  or  a  sav- 
ing of  6V2C  per  hundred  pounds,  or  $1.30  per  net  ton, 
or  132.50  per  car — although  the  service  in  both  cases 
is  identical. — Ed. 

METHOD  OF  ASSESSING  FREIGHT  CHARGES. 

18.  Generally  in  its  application  the  raw  material  pays 
the  local  rate  into  the  point  of  manufacture;  when 


-10— 


afterwards  the  manufactured  product  goes  forward,  it 
is  transported  upon  a  rate  which  would  be  applicable 
to  that  product  had  it  originated  in  its  manufactured 
state  at  that  point  where  the  raw  material  was  received 
for  transportation,  whatever  has  been  paid  into  the 
mill  being  accounted  for  in  the  final  adjustment. 

Central  Yclloiv  Pine  Assn.  vs.  Vickshurg  8.  d  P. 
R.  R.  Co.  et  al.,  10  I.  C.  C.  Rep.,  193  (1904). 


SERVICES  RENDERED  REMEDY  AN  ARTIFICIAL  DISADVANTAGE. 

19.  It  is  patent  that  the  ability  of  St.  Louis  and  Chi- 

cago to  handle  this  wool  upon  what  is  equivalent  to 
the  through  rate,  while  Omaha  and  Detroit  can  not 
do  so,  results  not  from  any  natural  advantage  pos- 
sessed by  these  favored  communities,  but  solely  from 
the  artificial  circumstances  that  the  tariffs  of  these 
carriers  are  so  constructed  as  to  break  at  these  points. 

Railroad  Commission  of  Oregon,  et  al.  vs.  Oregon 
Short  Line  R.  R.  et  al,  23  I.  C.  C.  Rep.,  151 
(1912). 


-11— 


III.     JURISDICTION  OF  THE  COMMISSION. 


HAS   NO   AUTHORITY   TO    REQUIRE   GRANTING   OF   MILLING   IN 
TRANSIT  PRIVILEGE. 

20.  The  Commission  has  no  authority  to  order  a  car- 
rier to  grant  to  shippers  the  privileges  of  "milling-in- 
transit." 

Re  St.  Louis  Millers'  Assn.,  1  I.  C.  C.  Rep.,  22 

(1887). 

21.  The  Act  confers  no  authority  upon  the  Commis- 
sion to  require  carriers  to  accord  milling-in-transit 
privileges. 

Diamond  Mills  vs.  Boston  d  M.  R.  R.  Co.,  9  I.  C. 
C.  Rep.,  311  (1902). 


HAS    NO    AUTHORITY    TO    GRANT    PRIVILEGE    CORRESPONDING 
TO   MILLING   IN   TRANSIT    PRIVILEGE. 

22.  The  Commission  has  no  authority  to  require  the 

defendant  to  concede  the  privilege  sought  for,  corre- 
sponding to  that  of  "milling  in  transit." 

Creii:s  vs.  Richmond  tC-  D.  R.  R.  Co.,  1 1.  C.  C.  Rep., 

703  (1888). 


—12— 


HAS  AUTHORITY   TO    REMOVE   UNJUST   DISCRIMINATION    IN 
TRANSIT  PRIVILEGES. 

23.  However,  there  can  be  no  question  as  to  the  right 

and  power  of  the  Commission  to  order  the  removal  of 
an  unjust  discrimination  in  application  of  such  a  priv- 
ilege and  to  prescribe  such  reasonable  rates  and  regu- 
lations as  will  effect  such  removal. 

Douglas  d  Co.  vs.  C.  R.  I.  d-  P.  Rwy.  Co.  et  al.,  10 
I.  C.  C.  Rep.,  232  (1909). 


WHEN  RECONSIGNMENT  CHARGE  IS  WITHIN  JURISDICTION. 

24 .  The  validity  of  all  charges  for  services  rendered  in 

connection  with  interstate  transportation  is  vested 
exclusively  in  the  Interstate  Commerce  Commission 
and  the  courts  of  the  United  States,  and  the  validity 
of  the  reconsignment  charge  for  transferring  freight 
brought  into  the  State  by  a  railroad  running  from 
without  the  State  and  there  transferred  to  another 
line,  or  after  its  delivery  on  a  hold  track  to  the  con- 
signee elsewhere  in  the  city  as  directed  by  the  express 
provision  of  the  Interstate  Commerce  Act,  is  to  be 
determined  by  such  Federal  authority  and  not  by  the 
State  courts,  that  quo  warranto  would  not  lie  to  pre- 
vent the  carrier  from  making  a  charge  for  such  service. 

The  State  Ex  Inf.  Croio,  Attorney  General  vs. 
A.  T.  d  S.  F.  Rwy.,  176  Mo.,  687;  75  S.  W., 
776;  63  L.  R.  A.,  761  (1903). 


—13— 

WHEN   RECONSIGNMENT  CHARGE  IS  NOT  WITHIN  JURISDIC- 
TION. 

25 .  When  a  carload  of  hay  destined  to  East  St.  Louis 

is  delivered  by  the  carrier  at  a  warehouse  designated 
by  the  shipper  or  consignee  prior  to  arrival  in  that 
city,  or  to  the  proper  switching  road,  or  is  placed  upon 
the  team  track  of  the  carrier,  if  no  specific  delivery  is 
named,  the  car  has  been  properly  delivered  and  the 
carrier  may  insist  that  the  consignee  shall  accept  such 
delivery  and  in  case  the  consignee  intercepts  and  sells 
the  carload  while  upon  a  hold  track,  after  arrival  in 
East  St.  Louis,  but  before  such  delivery,  he  thereby 
accepts  delivery.     If  the  consignee,  instead  of  remov- 
ing the  hay  from  the  car  so  delivered,  sells  it  to  another 
party,  and  a  carrier,  upon  an  order  of  the  original  con- 
signee or  of  his  customer,  moves  the  car  to  such  cus- 
tomer's storehouse  in  East  St.  Louis,   that  is  a  new 
and  independent  service  or  reconsignment  performed 
entirely  within  the  State  of  Illinois,  of  which  the  In- 
terstate Commerce  Commission  has  no  jurisdiction. 
The    Commission,    however,    consider   that    Congress 
might,  directly  or  through  the  Commission,  require 
that  shippers  shall  be  allowed  a  certain  time  after 
arrival  in  East  St.  Louis  to  designate  the  point  of  de- 
livery for  interstate  shipments,  and  that  such  delivery 
be  made  accordingly. 

St.  Louis  Hay  d  Grain  Co.  vs.  C.  B.  tC-  Q.  Rwy.  Co. 
ef  a?.,  11  L  C.  C.  Rep.,  82  (1905). 


-14— 


INTENTION  TO  RECONSIGN  WITHIN   THE    STATE   AFTER    DE- 
LIVERY EXEMPT  FROM  JURISDICTION  OF  COMMISSION. 

26.  The  intention  or  purpose  of  the  ovrners  of  an 

interstate  shipment  of  a  carload  of  grain  to  forward 
such  car  from  the  original  terminal  point  to  another 
point  in  the  same  state  does  not  make  the  shipment  be- 
tween such  two  points,  when  performed  by  a  connect- 
ing carrier  to  which  the  car  was  delivered  by  the  orig- 
inal terminal  carrier  in  obedience  to  the  instructions 
of  the  owner,  an  interstate  one,  and  as  such,  is  exempt 
from  the  regulations  of  the  Eailroad  Commission. 

Gulf  Colorado  d:  S.  F.  Rwy.  Go.  vs.  Terns,  204  U. 
S.,  403;  51  L.  ed.,  540;  27  Sup.  Ct.  Kep.,  360, 
affirming  97  Texas,  274,  78  S.  W.,  495  (1907). 


JURISDICTION  OVER  COMPRESSION   OF  COTTON. 

27 .  The  question  of  compression  of  cotton  in  transit  is 

one  with  which  railroads  may  deal  entirely  as  they  see 
fit,  and  without  respect  to  the  effect  which  its  prac- 
tices have  upon  the  transportation  of  cotton.  Either 
the  carrier  must  publish  a  rate  upon  uncompressed 
cotton  and  another  rate  upon  compressed  cotton  and 
divorce  itself  entirely  from  the  matter  of  compression, 
or  else  such  compression  as  is  given  by  the  railroad  be- 
comes subject  to  the  jurisdiction  of  the  Commission. 

Muskogee  Gommercial  Club  rs.  Al.  K.  iG  T.  Rwy. 
Go.,  12  I.  C.  C.  Rep.,  312  (1907). 


// 


—15— 

JURISDICTION    TO    AWARD    DAMAGES    FOR    UNLAWFUL    DIS- 
CRIMINATION IN  ELEVATOR  ALLOWANCES. 

^^-  Complaint  alleged  unjust  disciiniination  aris- 

ing from  the  practice  of  defendant  of  allowing  free 
commercial  elevation  at  certain  places  and  refusing 
the  same,  or  a  money  compensation  therefor,  at  Atchin- 
son.  Based  on  this  allegation  indirect  damages  to  a 
large  amount  were  claimed  as  well  as  an  attorney's 
fee.  The  evidence  was  that  the  complainant  actually 
elevated  a  certain  amount  of  grain,  moving  in  inter- 
state commerce  over  the  defendant's  lines.  The  Com- 
mission has  condemned  commercial  elevation  as  prac- 
ticed by  the  carriers,  or  money  compensation  therefor, 
Peavep  case,  14  I.  C.  C.  Rep.,  315;  at  the  time  of  the 
alleged  discrimination,  however,  %  of  a  cent  per  100 
pounds  was  considered  a  proper  allowance  in  lieu  of 
such  elevation.  Upon  consideration  of  all  the  facts. 
Held: 

The  Commission  has  jurisdiction,  without  regard 
to  the  amount  in  controversy,  to  award  damages  when- 
ever they  arise  under  under  the  act,  excepting  in  those 
cases  where  the  act  itself  names  another  forum. 

While  the  Ahilenc  case,  20-1  U.  S.,  426,  settles  the 
primary  jurisdiction  of  this  Commission  to  determine 
the  reasonableness  or  unreasonableness  of  an  estab- 
lished rate  and  to  award  reparation  predicated  upon 
th{^  unreasonableness  of  an  established  rate,  the  Com- 
mission's jurisdiction  is  primary  also  in  matters  of 
unjust  discrimination,  undue  or  unreasonable  prefer- 
ence or  advantage,  undue  or  unreasonable  prejudice  or 


-16— 


disadvantage,  and,  generally,  whenever  the  Commis- 
sion may  order  the  carrier  to  cease  and  desist  from 
violations  of  the  act. 

The  Commission  in  passing  upon  the  reasonable- 
ness or  unreasonableness  of  a  rate,  acts  as  an  adminis- 
trative body  having  quasi  judicial  functions;  when  it 
determines  what  the  rate  should  have  been  and  shall 
be  in  the  future  it  exercises  certain  legislative  func- 
tions ;  when  it  computes  the  damages  or  reparation  due 
the  shipper  by  reason  of  the  enforcement  and  collec- 
tion of  a  rate  unreasonable  to  the  extent  that  it  ex- 
ceeds a  rate  which  is  declared  to  be  reasonable,  there 
is  a  mere  mathematical  determination  of  the  damages 
the  shipper  should  receive.  Reparation  or  damages, 
therefore,  in  all  matters  which  concern  rates  are  re- 
duced, after  the  Commission  has  determined  what  the 
reasonable  rate  should  have  been,  to  the  simplicity  of 
a  mathematical  calculation;  elements  of  conjecture, 
speculation,  and  inference  are  entirely  eliminated. 
In  matters  of  discrimination,  however,  of  undue  pref- 
erence, prejudice,  or  disadvantage,  a  different  field  is 
entered,  where  the  services  of  a  jury  may  be  necessary 
not  only  by  reason  of  the  seventh  amendment  to  the 
Constitution,  but  by  the  poor  nature  of  the  subject 
matter  itself.  It  may  be  proper,  and  the  Commission 
has  so  considered  in  many  instances,  to  award  money 
damages  in  cases  of  the  kind  just  described,  and  such 
awards  have  been  complied  with  by  the  carriers,  but 
the  proofs  to  support  such  awards  should  be  very  clear 
and  exact;  they  should  be  free  from  a  surmise  and 
conjecture. 


—17— 

Reparation,  based  upon  the  amount  of  grain  actu- 
ally elevated,  allowed  in  this  case  because  it  is  found 
that  the  free  commercial  elevation  afToided  shi})pers 
elsewhere  discriminated  aj^ainst  Atchison  and  alfected 
the  rates  paid  by  the  complainant  to  the  exact  extent 
of  %  of  a  cent  per  100  pounds. 

The  Commission  does  not  assess  costs;  nor  does 
it  allow  attorney's  fees ;  nor  does  its  order  for  the  pay- 
ment of  money  have  the  effect  of  an  order,  decree,  or 
judgment  of  a  court;  nor  are  such  orders  enforceable 
by  process ;  nor  do  they  become  liens  upon  the  property 
of  a  defendant. 

S.  R.  Washer  Grain  Company  vs.  Missouri  Pacific 
Railway  Company,  15  I.  C.  C.  Rep.,  147 
(1909).  See  /.  C.  C.  vs.  Diffenhaugh  et  al., 
222  U.  S.,  42,  infra. 

REPARATION    FOR   UNLAWFUL    DISCRIMINATION    AWARDED    IN 
ELEVATOR  ALLOWANCES. 

29.  Reparation  awarded  because  of  undue  discrimina- 
tion in  favor  of  complainant's  competitors  in  elevator 
allowances  made  by  defendant  at  Oiuaha  and  Council 
Bluffs. 

Merriam  cC  Holmquist  vs.  Union  Pacific  Railroad 
Company,  16  I.  C.  C.  Rep.,  337  (1909). 

SUPREME  COURT  RULES  ALLOWANCES  FOR  ELEVATION  ARE 
UNDER  JURISDICTION  OF  THE  COMMISSION. 

30.  The  ground  on  which  the  payment  to  owners  of 
grain  finally  was  held  to  be  a  rebate  had  been  consid- 


—18— 

ered  from  the  be^uniiig,  and,  as  we  have  said,  had 
been  brought  to  the  mind  of  Congress.  It  is  that 
when  the  owners  of  the  elevators  own  the  grain  put 
into  them  they  have  the  opportunity  to  perform  other 
services  to  the  grain  in  the  way  of  treatment,  or  clean- 
ing, clipping,  and  mLxing  the  grain,  which,  althougl^ 
not  included  under  the  term  elevation,  or  paid  for  by 
the  railroad,  it  is  an  advantage  to  them  to  be  able  to 
perform  at  the  same  time.  This  advantage  is  thought 
to  create  an  undue  preference  and  unjust  discrimina- 
tion. Of  course  the  opportunities  for  fraud  are  ad- 
verted to,  but  the  ground  of  the  decision  is  that  even 
an  honest  payment  of  the  bare  cost  of  elevating  grain 
in  transit  gives  an  undue  advantage  if  the  elevator 
owner  also  owns  the  grain,  xis  was  pointed  out  by  the 
court  below,  the  final  order  is  confined  to  grain  that 
has  been  treated,  weighed,  inspected,  or  mixed. 

We  agree  vrith  the  court  below  that  this  decision 
is  erroneous  in  its  concex3tion  of  the  grounds  on  which 
under  the  statute  an  advantage  may  be  pronounced 
undue,  and  in  its  assumption  that  Congress  has  left 
the  matter  open  by  merely  permissive  words.  The 
jjrinciple  as  to  advantages  is  recognized  in  Penn  Refin- 
ing Co.  vs.  Western  Neiv  York  d  Pennsylvania  R.  R. 
Co.,  208  U.  S.,  208,  221.  The  law  does  not  attempt  to 
equalize  fortune,  opportunities  or  abilities.  On  the 
contrary,  the  Act  of  Congress  in  terms  contemplates 
that  if  the  carrier  receives  services  from  an  owner  of 
property  transported,  or  uses  instrumentalities  fur- 
nished by  the  latter,  he  shall  pay  for  them.  That  is 
taken  for  granted  in  S  15;  the  only  restriction  being 


—19— 

that  he  shall  par  no  more  than  is  roasonahle,  and  the 
only  permissive  element  being  that  the  Commission 
may  determine  the  maximum  in  case  there  is  complaint 
(or,  now,  npon  its  own  motion.  Act  of  June  18,  1910, 
c.  309,  12,  36  Stat.,  539,  553).  As  the  carrier  is  re- 
quired to  furnish  this  part  of  the  transportation  npon 
request  he  could  not  be  required  to  do  it  at  his  own 
expense,  and  there  is  nothing  to  prevent  his  hiring  the 
instrumentality  instead  of  owning  it.  In  this  case 
there  is  no  complaint  that  the  rate  out  of  which  the 
allowance  is  made  is  unreasonable  and  it  is  admitted 
that  three-quarters  of  a  cent  barely  would  pay  the  cost 
of  the  service  rendered  without  any  reasonable  profit 
to  Peavey  &,  Co.  for  the  work.  See  Interstate  Com- 
merce Commission  vs.  8tickney,  215  TJ.  S.,  98. 

Interstate  Commerce  Commission  vs.  Diffenhaugh 
et  al.,222  U.  S.,  42  (1911). 

AMENDMENT  OF  1906  GAVE  THE  COMMISSION  PLENARY  POW- 
ERS OVER  TRANSIT. 

31.  The  powers  of  the  Commission   were  much  en- 

larged by  the  Amendment  of  1906  and  by  the  subse- 
quent amendment  of  1910,  the  jurisdiction  of  the  body 
to  deal  with  matters  of  this  kind  was  further  ampli- 
fied.    At  present  by  terms  of  the  15th  section. 

"The  Commission  is  hereby  authorized  and 
empowered  to  determine  and  prescribe  what  will 
be  the  just  and  reasonable  individual  or  joint  rate 
or  rates,  charge  or  charges  to  be  thereafter  ob- 
served in  such  case  as  a  maximum  to  be  charged, 


—20— 

and  what  individual  or  joint  classification,  regu- 
lation or  practice  is  just,  fair  and  reasonable  to 
be  thereafter  allowed." 

It  is  impossible  to  compare  the  15th  Section  as  it 
stood  previous  to  the  amendment  of  190G,  with  the 
same  section  today,  without  reaching  the  conclusion 
that  it  was  the  intention  of  Congress  to  invest  this 
Commission  with  full  authority  over  interstate  rates 
and  whatever  regnlations  or  practices  entered  into 
those  rates  and  determined  their  value  and  availabil- 
ity to  individuals  or  communities. 

Transit  is  a  practice  of  universal  prevalence. 
There  is  not  probably  a  railroad  in  the  whole  United 
States  handling  any  considerable  amount  of  business 
into  whose  tariffs  it  is  not  incorporated.  There  is  not 
a  State  Commission  with  authority  to  establish  rates 
which  does  not  exercise,  as  part  of  that  authority,  the 
right  to  prescribe  and  enforce  proper  transit  privi- 
leges. This  Commission  cannot,  as  tariffs  are  now 
constructed  and  as  railroad  business  is  now  conducted, 
properly  supervise  and  regulate  the  interstate  rates 
and  practices  of  this  country  without  authority  over 
transit.     In  the  Diamond  Mills  case  we  said : 

"A  complete  system  of  Interstate  Kailway 
Regulations  would  probably  give  the  regulating 
body  authority  to  determine  when  privileges  of 
this  kind  should  be  accorded  and  upon  what 
terms,  for  they  all  enter  into  and  are  really  a  part 
of  the  rate." 


—21— 

While  the  Commission  has,  since  the  amendment 
of  190G,  frequently  followed  the  cases  which  were  de- 
cided previously  to  that  date,  in  no  case  have  we  de- 
clined to  establish  a  transit  privilege  where  the  facts 
showed  that  the  establishment  of  that  privilege  was 
required.  Upon  a  further  consideration  of  that  sub- 
ject we  hold  that  transit  is  a  practice  or  regulation 
included  within  the  provision  of  the  15th  Section,  over 
which  this  Commission  has  jurisdiction,  and  that  we 
may,  in  a  case  like  this  require  carriers  to  accord  that 
privilege. 

Railroad  Commission  of  Oregon — National  Wool 
Growers  Association  vs.  Oregon  ^Short  Line 
R,  R.  Co.  et  al,  23  I.  C.  C.  Rep.,  151  (1912). 


MAY    REQUIRE    ACCOUNTING    OF    INTERSTATE    AND    INTRA- 
STATE  TRANSIT   AND    NON-TRANSIT   TONNAGE. 

32.  As  we  said  in  the  Wool  case,  supra,  it  is  impossi- 

ble to  compare  the  15th  Section  as  it  stood  prior  to  the 
amendment  of  1906,  with  the  same  section  today  with- 
out reaching  the  conclusion  that  it  was  the  intention 
of  Congress  to  invest  this  Commission  with  full  author- 
ity over  interstate  rates,  and  all  regulations  or  prac- 
tices entering  into  those  rates  and  determining  their 
value  and  availability  to  individuals  or  communities. 
As  to  their  reasonableness  or  discriminatory  effect 
transit  privileges,  and  all  rules  or  regulations  in  con- 
nection therewith,  or  subject  to  the  regulating  author- 
ity delegated  by  the  Congress  to  this  Commission,  and 
in  the  exercise  of  that  authority  rules  and  regulations 


—22— 

susceptible  of  possible  discriminatory  or  other  unlaw- 
ful application  may  be  condemned,  and  other  rules 
and  regulations  prescribed,  and  to  this  end  we  may 
require  a  strict  accounting,  not  only  of  interstate  tran- 
sit and  non-transit  tonnage,  but  local  intrastate  ton- 
nage as  well.  /.  C.  C.  vs.  Goodrich  Transit  Co.,  224 
U.  S.,  194,  decided  April  1st,  1912. 

The  Transit  Case,  24  I.  C.  C.  Hep.,  340  (1912). 


—23- 


IV.     ALLOWANCE  OF  PRIVILEGE. 

ALLOWANCE  DEPENDS  UPON  FACTS  IN  PARTICULAR  CASE. 

33.  Whether  the  principle  of  milling  in  transit  may 
be  extended  to  a  particular  case  will  depend  largely 
upon  the  facts. 

Central  Yelloiv  Pine  Assn.  vs.  Yickshurg,  S.  d  P. 
Rd.  Co.  ct  al.,  10  I.  C.  C.  Rep.,  193  (1904). 

MILLING  IN  TRANSIT  IS  A  PRIVILEGE  NOT  A  RIGHT. 

34 .  Milling  in  transit  is  a  privilege  which  is  frequent- 
ly accorded  by  carriers  under  their  through  rates  on 
grain  from  points  of  origin  to  the  ultimate  destination. 
But  shippers  are  not  entitled  as  a  matter  of  right  to 
mill  their  grain  in  transit  and  forward  the  product 
under  the  through  rates. 

Diamond  Mills  Co.  vs.  B.  d  iM.  R.  R.,  9  I.  C.  C. 
Rep.,  311  (1902). 

Purposes  for  which  allowed  :  * 

GRADING  AND   SORTING  OF  MERCHANDISE. 

35.  The  carrier  may,  as  a  part  of  a  contract  for 
through  shipment,  allow  merchandise  to  be  stopped 


*See  also  paragraphs  Numbers  3,  4,  7,  8,  9,  10,  11  and  12  pertaining  to  al- 
lowance of  privilege  on  cotton,  flour,  lumber,  live  stock,  grain,  structural  steel, 
wool  and  corn. 


—24-- 

off  in  transit  for  the  purpose  of  undergoing  treatment, 
such  as  grading,  sorting,  etc. 

Re  Alleged  Unlawful  Rates  and  Practices  in 
Transportation  of  Cotton,  8  I.  C.  C.  Rep.,  121 
(1899). 

CLEANING  AND   SACKING  OF  GRAIN. 

36.  A  rule  that  provides  that  grain  shipped  through 
from  point  of  origin  to  point  of  final  destination  may 
be  stopped  at  an  intermediate  point  for  cleaning,  sack- 
ing or  other  legitimate  purpose,  the  shipment  after- 
wards carrying  a  proportional  or  balance  of  a  through 
rate,  is  not  unlawful. 

Re  Rates  and  Practices  of  Mobile  d-  0.  Rd.  Co., 
9  I.  C.  C.  Rep.,  373  (1903). 

ELEVATION. 

37.  It  is  clear  that  the  law  recognizes  elevation  as  a 
facility  which  a  carrier  may  provide  for  the  benefit  of 
its  shippers  if  it  finds  it  to  its  interest  to  do  so  as  an 
inducement  for  shippers  to  send  their  traflhc  over  its 
line. 

In  the  Matter  of  AUoivance  to  Elevators,  V2  I.  C. 
C.  Rep.,  86  (1907). 

COMPRESSION  OF  COTTON. 

38.  The  complaint  alleges  that  the  Traders'  Compress 
Co.  impose  certain  charges  for  applying  owners'  or 


—25—      

shippers'  to  cotton  bales  in  their  compression  and  for 
storage  on  cotton  remaining  in  the  compress  at  con- 
centration points  after  the  expiration  of  15  days,  and 
that  every  service  performed  in  connection  with  the 
cotton  from  the  point  of  origin  to  destination,  includ- 
ing the  services  so  charged  for  by  the  Compress  Com- 
pany, are  included  in  the  through  rate,  and  an  obliga- 
tion rests  upon  the  carriers  to  protect  the  owners  or 
shippers  against  such  charges;  Held,  That  the  facts 
shown  do  not  justify  any  order  against  defendant  car- 
riers ;  that  the  carriers  have  the  right  to  compress  cot- 
ton in  transit;  that  they  have  the  right  to  grant  or  al- 
low shippers  or  owners  the  privilege  of  concentrating 
uncompressed  cotton  at  designated  compresses  on  their 
lines  for  such  treatment  as  such  shippers  or  owners 
may  desire  to  give,  with  the  right  of  such  shipper  or 
owner  to  deliver  the  cotton  back  to  the  carriers  for 
transportation  to  interstate  or  foreign  destinations  at 
the  through  rate  from  points  of  origin. 

Anderson  Clayton  c£-  Co.  et  al.  vs.  C.  R.  I.  d-  P. 
Rwy.  Co.  et  al.,  18  I.  C.  C.  Rep.,  340  (1910). 


TO  MILL  OWNER  WHO  CONTROLS  CONNECTING  ROAD. 

39.  Carriers   engaged   in   transporting   lumber   from 

Arkansas,  Louisiana  and  Texas  to  Kansas  City  and 
other  western  markets  established  joint  through  rates 
with  certain  logging  roads  from  points  where  the  logs 
were  received,  via  points  of  connection  where  the  logs 
were  milled,  to  destination  mentioned.  The  logging 
roads  were  owned  bv  the  mill  owners.     While  orig- 


—26— 

inally  built  for  the  purpose  only  of  hauling  logs  from 
the  forests  to  the  mills,  they  were  engaged  to  a  greater 
or  less  extent  in  handling  other  traffic.  Such  roads 
were  allowed  divisions  of  the  through  rate.  Held, 
That  while  the  milling  in  transit  privilege  thus  ac- 
corded the  mill  owners  was  not  unlawful,  such  hold- 
ing extended  the  application  of  the  milling  in  transit 
principle  to  the  extreme  limit. 

Central  Yelloio  Pine  Assn.  vs.  Vickshurg  8.  &  P. 
Rd.  Co.  et  al.,  10  I.  C.  C.  Rep.,  193  (1904). 


CARRIER  MAY  LAWFULLY  REFUSE  TO  ALLOW  PRIVILEGE. 

40.  Shippers  are  not  entitled  as  a  matter  of  right  to 
mill  grain  in  transit  and  forward  the  milled  product 
under  the  through  rate  in  force  on  the  grain  from  point 
of  origin  to  the  place  of  ultimate  destination. 

Koch  vs.  P.  R.  R.  et  al.,  10  I.  C.  C.  Rep.,  675 
(1905). 

41.  Complainant,  a  miller  at  Detroit,  Mich,  brings 
in  wheat  by  water  from  Duluth,  grinds  it  at  Detroit, 
and  ships  the  product  by  all  rail  to  various  eastern 
destinations.  Upon  complaint  that  defendants  apply 
from  Detroit  to  these  eastern  destinations  a  rate  on 
wheat  which  has  come  to  Detroit  by  water  which  is 
less  than  the  rate  which  they  apply  upon  the  flour 
which  the  complainant  has  ground  from  similar  wheat, 
and  also  that  defendants  grant  to  millers  located  upon 
their  lines  in  case  of  this  wheat  the  milling-in-transit 
privilege;  Held,  That  upon  the  facts  disclosed  by  the 


—27— 

record  and  for  the  reasons  given  in  the  report  the 
complaint  should  be  dismissed.  Hecker,  Jones,  Jew- 
ell Milling  Co.  vs.  B.  cG  0.  R.  R.  Co.,  14  I.  C.  C.  Rep., 
356,  cited  and  distinguished  (1908). 

David  Stott  vs.  Mich.  Central  R.  R.  Co.  et  al,  18 
I.  C.  C.  Rep.,  582  (1910). 

TREATMENT    OR    RECONSIGNMENT    IN    TRANSIT    A    PRIVILEGE 
NOT  A  RIGHT. 

42.  The  stopping  of  a  commodity  in  transit  for  the 
purpose  of  treatment  or  reconsignment  is  in  the  na- 
ture of  a  special  privilege  which  the  carrier  may  con- 
cede, but  which  the  shipper  cannot  demand  as  a  mat- 
ter of  lawful  right. 

St.  Louis  Hay  c£  Grain  Co.  vs.  Mobile  d  0.  R.  R. 
et  al,  11  I.  C.  C.  Rep.,  90  (1905). 

RECONSIGNMENT   A   PRIVILEGE   NOT   A   RIGHT. 

43.  The  Commission  has  always  regarded  reconsign- 
ment as  v>.  privilege,  not  a  right  to  be  demanded  by 
shippers,  and  has  consistently  refused  to  extend  same 
except  to  correct  unjust  discrimination. 

Cedar  Hill  C.  tC-  C.  et  al.  vs.  C.  <C-  S.  Rwij.  Co.  et  al., 
16  I.  C.  C.  Rep.,  387  (1909). 

ON  ACID  PHOSPHATE  AND  PHOSPHATE  ROCK. 

44 .  The  complainant  asks  for  the  same  rates  on  phos- 
phate rock  and  acid  phosphate,  for  transit  privileges, 
and  for  reparation;  Held,  That  acid  phosphate  is  of 


—28— 

higher  grade  than  the  crude  rock,  and  while  the  car- 
riers may  rate  them  together  the  Commission  is  not 
prepared  on  this  record  to  order  such  rating ;  and  that 
complainant  is  not  entitled  either  to  transit  privileges 
or  to  reparation. 

Bash  Fertilizer  Go.  vs.  Wahash  R.  R.  Co.  et  al,  18 
I.  C.  C.  Rep.,  522  (1910). 

MAY    WITHHOLD    PRIVILEGE    FROM   DIFFERENT    PRODUCTS    OF 
SAME  RAW  MATERIAL. 

45.  There  is  of  course  a  limit  to  the  products  which 

can  reasonably  be  included  in  the  list  of  those  which 
will  be  transported  at  the  raw  material  rate  either 
with  or  without  a  transit  privilege.  It  might  be  rea- 
sonable to  withhold  transit  privileges  from  a  product 
that  is  essentially  different  from  the  raw  material  and 
from  the  other  products  of  the  same  raw  material 
which  are  accorded  transit  rates,  as,  for  example,  a 
liquid  product  of  grain;  but  it  is  clearly  discrimina- 
tory to  single  out  one  or  more  of  several  milled  prod- 
ucts of  grain  and  withhold  from  it  or  them  transit 
privileges  which  is  accorded  at  that  or  some  other  com- 
petitive point  to  other  milled  products  of  grain  of  sub- 
stantially similar  character,  value,  and  packing,  and 
which  are  transported  under  substantially  the  same 
conditions,  attended  by  substantially  equal  risks, 
where  there  is  competition  between  the  millers  of  the 
grain  either  in  marketing  their  product  or  in  securing 
their  material  for  milling. 

Douglas  &  Co.  vs.  Chicago  R.  I.  cC-  P.  Rwy.  Co.  et 
al.,  16  I.  C.  O.  Rep.,  232  (1909). 


—29- 


AFTER  LAPSE  OF  TWO  YEARS  CANNOT  ORDER  IT  RESTORED 
UNLESS  RESTING  UPON  SOME  LEGAL  OBLIGATIONS. 

46.  Upon  supplemental  complaint  allefrinc:  that  de- 

fendants had  cancelled  certain  transit  privileges  which 
were  established  in  compliance  with  the  Commission's 
decision  in  the  ])rior  case,  certain  tariffs  were  sus- 
pended and  investigation  made.  It  appears  that  more 
than  two  years  have  elapsed  between  the  time  of  the 
first  decision  and  the  filing  of  the  supplemental  com- 
plaint; Held,  upon  the  present  record  that  the  with- 
drawal of  the  transit  rates  heretofore  accorded  does 
not  work  undue  preference  or  unjust  discrimination. 

A  privilege,  savoring  as  this  does  of  a  gratuity, 
however  valuable  and  beneficial  and  however  difficult 
of  relinquishment,  cannot  as  a  matter  of  law,  be  con- 
tinued by  this  Commission,  unless  the  original  grant- 
ing of  the  privilege  rested  on  some  legal  obligation 
which  under  the  law  affords  ground  on  which  the  Com- 
mission could,  as  an  original  proposition,  require  that 
it  be  granted,  or,  if  discontinued,  order  it  restored. 

Supplemental  complaint  dismissed  and  orders  sus- 
pending tariffs  vacated. 

Douglas  cC-  Gompanij  vs.  C.  R.  I.  &  P.  Rwy.  Co. 
et  al.,  21  I.  C.  C.  Rep.,  97  (1911). 

PETITION  FOR  REHEARING  IN  ABOVE  TWO  CASES  DENIED. 

47.  Complainant,  Douglas  &  Co.  filed  a  petition  for 

rehearing  in   the  two  cases — 16  I.  C.  C.   Rep.,  232, 


—30—  

supra;  and  21  I.  C.  C.  Kep.,  97,  supra;  The  Commis- 
sion denied  tlie  petition  on  the  gronnd  that  the  de- 
fendant had  removed  the  discrimination  subsequent 
to  the  order  in  the  original  case,  no  issue  being  raised 
in  that  case  as  to  the  reasonableness  of  the  rate. 
Neither  v.as  the  reasonableness  of  the  rate  in  the  issue 
in  the  supplemental  hearing — The  only  issues  pre- 
sented in  the  original  and  supplemental  proceedings 
have  been  disposed  of.  The  reasonableness  of  rates 
can  not  be  considered  except  upon  a  proceeding  which 
properly  put  them  in  issue. 

Douglas  cG  Company  vs.  C.  R.  I.  d-  P.  Ricy.  Co. 
et  al,  21  I.  C.  C.  Rep.,  541  (1911). 

EXTENSION    OF    PRIVILEGE   INTO    NEW    TERRITORY    NOT   GEN- 
ERALLY ALLOWED. 

48.  Where  proof  respecting  local  conditions  is  meagre 
and  incomplete,  the  Commission  will  decline  to  make 
a  decision  which  in  principle,  would  involve  a  general 
extension  of  milling  in  transit  privilege  into  territory 
where  such  privileges  had  not  before  been  allowed. 

Koch  vs.  P.  R.  R.  Co.  et  ah,  10  I.  C.  C.  Eep.,  675 
(1905). 

EXTENSION  OF  PRIVILEGE  INTO  NEW  TERRITORY  TO  BE  CUR- 
TAILED RATHER  THAN  EXTENDED. 

49.  Omaha  enjoys  advantages  under  the  carriers'  tar- 
iffs Avhich  Detroit  regards  herself  as  entitled  to,  but 
the  carriers  which  serve  Omaha  are  not  those  which 


—31— 

serve  Detroit.  The  Western  carriers  as  a  matter  of 
policy  give  Omaha  a  certain  privilege  which  the  East- 
ern carriers  as  a  matter  of  policy  deny  to  Detroit. 
This  affects  Detroit,  no  doubt,  injuriously  to  some  ex- 
tent, but  it  is  difficult  to  see  how  it  can  be  remedied 
(1)  Because  the  carrying  lines  involved  at  the  two 
cities  are  not  the  same,  and  (2)  because  to  uphold  such 
claim  on  the  part  of  Detroit  would  justify,  if  not  re- 
quire, a  wide  extension  of  the  privilege  to  other  points. 
If  we  give  to  Detroit  a  transit  privilege,  every  other 
point  within  Official  Classification  territory  would 
properly  feel  that  it  would  be  entitled  to  such  privi- 
lege. And  instead  of  extending  such  privilege  we  be- 
lieve it  should  be  our  policy  to  curtail  them  to  as  great 
a  degree  as  may  be  consistent  with  the  industrial  de- 
velopment of  the  country,  for  our  investigations  show 
that  they  are  the  source  and  aggravating  cause  of  many 
of  the  most  serious  complaints  brought  to  our  notice. 
We  feel  that  we  are  compelled,  therefore,  upon  princi- 
ple to  deny  the  petition  for  transit  privilege  at  Detroit. 

Traugott  Schmidt  &  Sons  vs.  Mick.  Central  R.  R. 
Co.  et  al.,  19  I.  C.  C.  Rep.,  535  (1910). 


—33- 


V.     AGREEMENT  BETWEEN  CONNECTING  CARRIERS 
FOR  ALLOWANCE  OF  PRIVILEGE. 


CARRIER  MAY  REFUSE  TO  BECOME  PARTY. 

50.  Since  a  through  route  and  through  rate  are  mat- 

ters of  contract  between  the  carriers,  it  foUows  that 
any  one  of  such  carriers  may  lawfully  decline  to  be- 
come a  party  to  a  milling  in  transit  arrangement,  un- 
less the  terms  and  conditions  thereof  are  satisfactory 
to  it. 

Diamond  Mills  vs.  Boston  &  Maine  R.  R.  Co.,  9  I. 
C.  C.  Rep.,  311  (1902). 


CARRIERS   MAY  AGREE  WITH   LOGGING  ROADS  FOR  PRIVILEGE 
TO  INDUSTRIES  THEREON. 

51.  Carriers  engaged   in   transporting  lumber   from 

Arkansas,  Louisiana  and  Texas  to  Kansas  City  and 
other  western  markets  established  joint  through  rates 
with  certain  logging  roads  from  points  where  the  logs 
were  received,  via  points  of  connection  where  the  logs 
were  milled,  to  destination  mentioned.  The  logging 
roads  were  owned  by  the  mill  owners.  While  origi- 
nally built  for  the  purpose  only  of  hauling  logs  from 
the  forests  to  the  mills,  they  were  engaged  to  a  greater 


—34— 

or  less  extent  in  handling  other  traffic.  Such  roads 
were  allowed  divisions  of  the  through  rate.  Held, 
That  while  the  miling  in  transit  privilege  thus  ac- 
corded the  mill  owners  was  not  unlawful,  such  hold- 
ing extended  the  application  of  the  milling  in  transit 
principle  to  the  extreme  limit. 

Central  Yelloio  Pine  Assn.  vs.  Vickshiirg  S.  &  P. 
R.  R.  Co.  et  aL,  10  I.  C.  C.  Rep.,  193  (1904). 


-35— 


VI.     CONTKACTUAL   RELATION    BETWEEN    SHIPPER 

AND  CARRIER. 

ABROGATION  OF  PRIVILEGE  WOULD  CONFISCATE  PROPERTY. 

52.  To  tibroj>ate  these  privileges  would  be  to  confis- 
cate thousands  and  probably  millions  of  dollars  in 
value,  be  rendering  worthless  industrial  plants,  which 
have  been  constructed  upon  the  faith  of  their  contin- 
uation. 

Central  Yelloic  Pine  Assn.  vs.  Vicksburg  8.  d-  P. 
R.  R.  Co.  et  al,  10  I.  C.  C.  Rep.,  193  (1901). 

CONTRACT   FOR   ALLOWANCE  OF   PRIVILEGE   IS   ENFORCEABLE. 

53 .  So  long  as  there  is  no  unjust  discrimination,  and 
no  stipulation  in  the  contract  forbidding  the  carrier 
extending  similar  rates  to  all  other  shippers  similarly 
situated,  there  is  no  express  provision  of  law,  and  no 
sound  reason  arising  out  of  public  policy,  which  pro- 
hibits a  carrier  entering  into  a  fair  and  equitable  mill- 
ing in  transit  arrangement  with  an  industry  upon  its 
line;  and  where  such  a  contract  is  entered  into,  an 
action  will  lie  in  favor  of  the  shipper  for  a  breach 
thereof. 

Laurel  Cotton  Mills  vs.  Gulf  d-  8.  I.  R.  R.  Co.,  SI 
Miss.,  339,  37  So.  131,  66  L.  R.  A.,  453  (1901). 


— SB- 
CARRIER    CANNOT    ALTER    RELATION    WHEN    ONCE    ESTAB- 
LISHED. 

54 .  There  is  no  inflexible  requirement  that  rates  upon 

grain  and  the  products  of  the  grain  shoukl  be,  under 
all  circumstances,  the  same,  but  rather  that  carriers 
may,  in  just  regard  for  their  own  interest  or  to  meet 
special  conditions,  vary  those  rates  within  narrow  lim- 
its. When  once  the  relation  has  been  established,  bus- 
iness developed,  and  money  expended  upon  the  strength 
of  it,  then  the  carrier  cannot,  in  the  absence  of  some 
sufficient  reason,  change  that  relation ;  nor  would  this 
Commission  direct  a  change. 

Howard  Mills  Company  vs.  Missouri  Pacific  Rail- 
way Co.,  12  I.  C.  C.  Eep.,  258  (1907). 


—37- 


VII.     PUBLICATION  CONDITION  PRECEDENT  TO 

LEGALITY. 

TERMS  OF  PRIVILEGE  SHOULD  BE  STATED  IN  TARIFF. 

55.  The  privilege  of  permitting  merchandise,  carried 
under  a  contract  for  through  shipment,  to  be  stopped 
in  transit  for  the  purpose  of  treatment,  enters  into  and 
becomes  a  part  of  the  service  covered  by  the  through 
rate,  and  should  be  specified  in  the  published  tariff. 

Re  Alleged  Unlawful  Rates  and  Practices  in 
Transportation  of  Cotton,  8  I.  C.  C.  Rep.,  121 
(1899). 

56.  Where  stop-over  privileges  are  granted  for  any 
purpose,  all  the  facts  and  circumstances  connected 
therewith  should  be  clearly  stated  in  the  published 
tariff,  so  that  the  public  generally  may  enjoy  their 
benefits. 

Re  Rates  and  Practices  of  Mobile  c6  Ohio  R.  R.  Co., 
9  L  C.  C.  Rep.,  373  (1903). 

57.  Where  the  privilege  of  milling  in  transit  is 
granted  to  a  particular  commodity,  the  fact  should  be 
plainly  stated  upon  the  tariff,  together  with  the  con- 
ditions upon  which  the  privilege  will  be  allowed. 

Central  Yellotv  Pine  Assn.  vs.  Vicksburg  S.  d  P. 
R.  R.  Co.  et  al,  10  L  C.  C.  Rep.,  193  (190-t). 


—38— 

58.  Carriers  engaged  in  transporting  lumber  from 
Arkansas,  Louisiana  and  Texas  to  Kansas  City  and 
other  western  markets  established  joint  through  rates 
with  eerlain  logging  roads  from  points  where  the  logs 
were  received,  via  points  of  connection  where  the  logs 
were  milled,  to  destinations  mentioned.  The  logging 
roads  were  owned  by  the  mill  owners,  and  were  ac- 
corded divisions  of  the  through  rate  for  handling  the 
logs  to  the  mill.  Held,  That  the  tariffs  should  state 
that  the  transportation  provided  for  covered  carriage 
of  the  logs  to  the  mill  and  the  lumber  from  the  mill ; 
that  since  the  divisions  were  allowed  for  the  benefit  of 
the  mill,  they  also  should  be  named  in  the  tariffs. 

lUd. 

PUBLICATION  OF  PRIVILEGE  REQUIRED  BY   SECTION  6  OF  THE 
ACT  AMENDED. 

59.  Section  6  (Amended  March  2,  1889.  Following 
section  substituted  June  29,  1906.  Amended  June  18, 
1910).  "That  every  common  carrier  subject  to  the 
provisions  of  this  act  shall  file  with  the  Commission 
created  by  this  act  and  print  and  keep  open  to  public 
inspection  schedules  showing  all  the  rates,  fares,  and 
charges  for  transportation  between  different     *     *     * 

The  schedules  printed  as  aforesaid  by  any  sucli 
common  carrier  shall  plainly  state  the  places  between 
which  property  and  passengers  will  be  carried,  and 
shall  contain  the  classification  of  freight  in  force,  and 
shall  also  state  separately  all  terminal  charges,  stor- 
age charges,  icing  charges,  and  all  other  charges  with 


39- 


I 


the  Commission  may  require,  all  privileges  or  facili- 
ties granted  or  allowed  and  any  rules  or  regulations 
which  in  any  wise  change,  affect,  or  determine  any 
part  of  the  aggregate  of  such  aforesaid  rates,  fares, 
and  charges,  or  the  value  of  the  service  rendered  to 
the  passenger,  shipper  or  consignee." 

In  the  amendments  of  1906,  the  section  was  sub- 
stantially rewritten.  The  important  changes  were, 
Firsts  the  requirement  of  the  same  publication  of  the 
joint  rate  as  of  the  separate  rates.  Theretofore  the 
measure  of  publicity  given  to  joint  rates  was  pre- 
scribed by  general  order  of  the  Commission.  Second, 
change  in  the  rates,  either  separate  or  joint,  was  pro- 
hibited except  after  thirty  days'  notice,  while  before 
the  amendment,  ten  days'  notice  was  required  of  an 
increase  and  three  days'  notice  of  a  decrease.  Third, 
the  requirement  of  a  separate  printing  and  posting 
not  only  of  terminal  charges  and  all  other  charges 
which  the  Commission  might  require,  and  all  privi- 
leges or  facilities  granted  or  allowed.  Fourth,  the 
requirement  as  to  posting  and  notice  could  be  modified 
on  good  cause  shown. 

Judson  on  Interstate  Commerce,  Par.  305. 


PUBLICATION    OF    ALL    TRANSIT     PRIVILEGES     SUBSEQUENTLY 
ORDERED  BY  THE  COMMISSION. 

60.  Each  carrier  shall  publish,  with  proper  I.  C.  C. 

numbers,  post,  and  file  separate  tariffs  which  shall 
contain  in  clear,  plain,  and  specific  form  and  terms  all 
the  terminal  charges  and  all  allowances,  such  as  arbi- 


—40— 

traries,  switching,  icing,  storage,  elevation,  diversion, 
reconsignment,  transit  privileges,  and  car  service,  to- 
gether with  all  other  privileges,  charges,  and  rules, 
which  in  any  way  increase  or  decrease  the  amount  to 
be  paid  on  any  shipment  as  stated  in  the  tariff  which 
contains  the  rate  applicable  to  such  shipment,  or  which 
increase  or  decrease  the  value  of  the  service  to  the 
shipper.  Such  tariffs  must  stipulate  clearly  the  ex- 
tent of  such  privilege  and  the  charges  connected  there- 
with, and  shall  also  state  whether  or  not  the  rate  pub- 
lished by  the  initial  carrier  from  the  point  of  origin 
to  ultimate  destination  will  apply.  If  the  through 
rate  does  apply  it  must  be  as  of  the  date  of  shipment 
from  point  of  origin. 

If  such  privilege  is  granted  or  charge  is  made  in 
connection  with  the  rate  under  which  the  shipment 
moves  from  point  of  origin,  the  initial  carrier's  tariff 
which  contains  such  rate  must  ulso  show  the  privilege 
or  the  charges  or  must  state  the  shipments  thereunder 
are  entitled  to  such  privileges  and  subject  to  such 
charges  according  to  the  tariffs  of  the  carriers  grant- 
ing the  privileges  or  perfonuing  the  services,  as  "law- 
fully on  file  with  the  Interstate  Commerce  Commis- 
sion." 

Rule  10  I.  G.  C.  Tariff  Circular  18- A.  (1906). 

ACT  REQUIRES  PUBLICATION  OF  PRIVILEGE. 

61.  The  Act  requires  that  the  established  schedules 

shall  show  "all  privileges  or  facilities  granted  or  al- 
lowed and  any  rules  or  regulations  which  in  any  wise 


effect  *  *  *  tin.  value  of  the  services  rendered  to 
the  passenger,  shipper,  or  consignee."  Held,  That  the 
privilogo,  such  as  milling,  sorting  and  mixing  or  blend- 
ing freight  in  transit,  materially  affect  the  value  of 
the  shipper  and  the  cost  to  the  carrier  of  the  transpor- 
tation, they  should  be  set  forth  in  the  published  tariff. 

Ibid. 


FAILURE  TO  PUBLISH  CAUSE  FOR  REFUSAL  OF  REPARATION  TO 
INJURED  PARTY  IN  UNLAWFUL  CONTRACT. 

62.  Defendant  I.  I.  &  I.  Railroad,  agreed  with  com- 

plainant for  a  stated  period  to  permit  live  stock, 
shipped  under  through  rates  from  points  in  Illinois 
to  eastern  destinations,  to  be  unloaded  at  its  stock 
pens  at  West  Kankakee,  111.,  where  the  stock  was  fed, 
watered,  sorted  and  reloaded  into  carloads  suitable 
for  the  market  to  which  consigned.  No  mention  of  the 
privilege  was  included  in  the  published  tariff.  Before 
expiration  of  the  period  fixed  in  the  agreement,  the 
agreement  was  canceled  by  defendant.  On  claim  by 
complainant  for  reparation:  Held,  That  as  an  order 
for  reparation  in  such  a  case  would  be  to  countenance 
and  enforce  contract  between  the  parties  which  they 
had  no  right  to  make  or  perform,  since  no  transit  priv- 
ilege of  any  kind  were  included  in  the  tariffs,  the  claim 
for  reparation  should  be  denied. 

Shiel  d  Co.  vs.  III.  Central  R.  R.  Co.  et  al.,  12  I. 
C.  C.  Rep.,  210  (1907). 


—42- 


PRIVILEGES    GRANTED    WITHOUT    PUBLICATION    IN    VIOLA- 
TION OF  THE  LAW. 

63.  All  privileges  accorded  on  shipments  in  transit 

and  which  affect  the  value  of  the  service  performed 
mnst  be  published  in  the  tariffs,  and  reparation  based 
on  breach  of  contract  for  a  privilege  which  was  not 
mentioned  in  the  tariffs  must  be  denied  the  shipper 
because  its  allowance  without  publication  was  in  vio- 
lation of  law. 

Ibid. 


CAN    NOT    BE    ENFORCED    AGAINST    CARRIER    IN    ABSENCE    OF 
PUBLISHED   TARIFFS. 

64.  The  privilege  of  stopping  hogs  in  transit  shipped 

from  Western  points  to  the  east  in  order  that  they  may 
be  sorted  and  recon signed  under  the  through  rate  from 
point  of  origin  cannot  be  enforced  against  carriers  in 
favor  of  any  single  point  or  shipper  in  the  absence  of 
lawfully  established  tariffs  making  such  privilege  open 
to  the  public  at  large. 

Rule  11  Con.  Rul.  Bui.  No.  5  (1908). 


—43— 


VIII.     CHAKGES  FOR  ALLOWANCE  OF  PRIVILEGE. 


EXTRA  COMPENSATION  FOR  PERMITTING  MILLING  IN  TRANSIT. 

65.  The  right  of  milling  in  transit  is  a  special  privi- 

lege for  which  the  carrier  may  demand  extra  compen- 
sation, and  which  it  may  permit  only  under  certain 
terms  and  conditions. 

Diamond  Mills  vs.  Boston  d  M.  R.  R.  Co.,  9  I.  C. 
C.  Rep.,  311  (1902). 


EXTRA  COMPENSATION  FOR  TREATMENT  AND  RECONSIGNMENT 
PRIVILEGES. 

66.  The  stopping  of  a  commodity  in  transit  for  the 

purpose  of  treatment  or  reconsignment  is  in  the  nature 
of  a  special  privilege  which  the  carrier  may  concede, 
*  *  *  *  and  may  exact  a  reasonable  charge  for 
such  privilege. 

St.  Louis  Hay  d  Grain  Co.  vs.  M.  d  0.  R.  R.  Co., 
11  I.  C.  C.  Rep.,  90  (1905),  citing  Diamond 
Mills  Co.  vs.  Boston  d  M.  R.  R.  Co.,  supra. 


CHARGE  SHOULD  NOT  EXCEED  ACTUAL  COST  (REVERSED). 

67.  Where  additional  service  is  required  of  a  carrier 

in  handling  commodities  which  are  stopped  in  transit, 


—44— 

for  the  purpose  of  treatment  or  reconsignment,  the 
charge  therefor  should  not  be  more  than  the  actual 
cost  to  the  carrier. 

St.  Louis  Hay  d  Grain  Co.  vs.  M.  tG  0.  R.  R.  Co. 
et  al,  11  I.  C.  C.  Rep.,  90  (1905)  Reversed 
inf)-a. 


ENTITLED  TO  COMPENSATION  IN  ADDITION  TO  ACTUAL  COST. 

68.  The  Supreme  Court  later  decided  that  a  carrier 

which  is  at  service  and  expense  in  stopping  goods  in 
transit  for  inspection  and  reloading  for  the  benefit  of 
the  shipper  is  entitled  to  compensation  in  addition  to 
the  actual  expenses  incurred. 

Southern  Rioy.  Co.  vs.  St.  Louis  Hay  eC-  Grain  Co., 
214  U.  S.,  297;  53  L.  ed.  1004,  29  Sup.  Ct., 
678,  reversing  153  Fed.  Rep.,  728,  82  C.  C.  A., 
614  and  149  Fed.  Rep.,  609,  affirming  order 
of  Commission  in  St.  Louis  Hay  cG  Grain  Co. 
vs.  M.  &  0.  R.  R.  et  al.,  11  I.  C.  C.  Rep.,  90 
(1909). 

In  reversing  the  lower  courts  the  case  was  re- 
manded to  the  Circuit  Court  with  instructions  to  send 
the  matter  back  to  the  Commission  for  further  in- 
vestigation and  report.  The  Supreme  Court  did  not 
determine  what  would  be  a  fair  and  reasonable  charge 
for  the  reason  that  the  testimony  had  not  been  pre- 
served in  the  record. 


CHARGE  FOR  PRIVILEGE  SHOUD  BE  IN  PROPORTION  TO  SERVICE. 

69.  A  carrier  is  not  justified  in  makincj  the  same 
charge  for  every  reconsigiiment.  The  privilege  of  re- 
consignment  is  a  thing  of  value  to  the  shipper  and  of 
expense  to  the  carrier;  therefore  a  charge  may  be 
made,  but  the  value  and  extent  of  that  service  vary 
and  the  charge  should  be  in  proportion  to  the  service. 

Beekman  Lumber  Co.  vs.  K.  C.  So.  Ricy.  Co.,  17 
L  C.  C.  Rep.,  86  (1909). 

PARTICULAR  FACTS   OF   EACH   CASE  GOVERN. 

70 .  A  charge  that  would  be  reasonable  for  a  diversion 
or  change  of  destination  of  a  shipment,  might  be  un- 
reasonable when  applied  to  a  single  change  in  con- 
signee which  did  not  involve  a  change  in  the  destina- 
tion or  more  expense  in  delivery. 

Rule  77/,  Tariff  Circular  18- A. 

CARRIER  NOT  REQUIRED  TO  PERFORM  BACK  HAUL  WITHOUT 
REASONABLE  COMPENSATION  THEREFOR. 

71.  The  direct  route  from  the  wheat  field  on  the  line 
of  the  Frisco  in  Oklahoma  to  points  on  the  Cotton  Belt 
in  Texas  is  through  their  junction  at  Sherman.  The 
complainant's  flour  mill  at  Celina  is  28  miles  south  of 
Sherman;  the  haul  of  its  wheat  to  Celina  and  of  its 
flour  back  to  Sherman  therefore  involves  an  extra  ser- 
vice of  56  miles  in  order  to  get  the  benefit  of  the 


—46— 

through  milling-  in  transit  rate  applicable  via  Sher- 
man ;  Held,  That  the  defendants  cannot  be  required  to 
perform  this  back  haul  free  of  charge  and  that  the 
present  tariff  rates  for  back  haul  and  out  of  line  ser- 
vice are  not  unreasonable. 

Celina  Mill  tG  Elevator  Co.  vs.  St.  Louis  S-W.  Rwy. 
Co.  et  al.,  15  I.  C.  C.  Eep.,  138  (1909). 

CHARGES    FOR   THE   TRANSIT    PRIVILEGE    SHOULD    BE    NON- 
DISCRIMINATORY. 

72.  On   complaint   that   concentration   charges,   pro- 

vided for  by  addition  to  local  rates  that  had  been  main- 
tained for  a  substantial  period  as  reasonable  and  sat- 
isfactory, and  forfeited  if  outbound  shipments  are 
not  tendered  to  the  same  carrier  that  transported  the 
inbound  shipments,  are  unreasonable  and  unjustly  dis- 
criminatory; Held,  That  while  the  Commission  does 
not  condemn  reasonable,  non-discriminatory,  and 
properly  applied  transit  rates  and  privileges,  or  a  rea- 
sonable and  non-discriminatory  charge  for  the  addi- 
tional service  performed  in  connection  with  a  transit 
privilege,  it  is  unreasonable  for  carriers  to  add  any- 
thing to  their  reasonable  rates  as  a  penalty  to  be  for- 
feited if  the  outbound  shipment  is  not  delivered  to  a 
certain  carrier ;  and  Held,  further.  That  it  is  unjustly 
discriminatory  for  carriers  to  assess  concentration 
charges  at  competitive  points  different  from  or  greater 
than  they  contemporaneously  assess  at  non-competi- 
tive points. 

Red  River  Oil  Co.  et  al.  vs.  Texas  tC-  Pacific  Rioy. 
Co.  et  ah,  23  I.  C.  C.  Kep.,  438  (1912). 


—47— 

REASONABLE    RECONSIGNMENT    CHARGE    WHERE    ONLY    NAME 
OF  CONSIGNEE  IS  CHANGED. 

73 .  One  dollar  per  car  is  a  reasonable  reconsignment 
charge  for  the  service  where  only  the  name  of  the  con- 
signee is  changed  and  there  is  no  change  in  destina- 
tion. 

Beehman  Lumber  Co.,  supra. 

REASONABLE    RECONSIGNMENT    CHARGE    WHERE    DESTINA- 
TION IS  CHANGED. 

74.  The  Commission  has  held  that  |2.00  per  car  is  a 
reasonable  reconsignment  charge  for  the  privilege  of 
changing  the  destination  of  the  shipment,  when  the 
change  was  made  before  or  immediately  after  the 
arrival  of  the  car  at  the  first  destination,  and  when 
no  back  haul  or  out  of  line  haul  is  required. 

Cedar  Hill  C.  &  C.  Co.  vs.  C.  cG  8.  Rwy.  Co.  et  al., 
15  I.  C.  C.  Rep.,  5^6  (1909)  ;  see  also  Board  of  Trade 
of  Kansas  City  vs.  C.  B.  cC  Q.  Rwy.  Co.  et  al.,  12  I.  C. 
C.  Rep.,  173  (1907),  where  |2.00  per  car  was  held  not 
to  be  an  unreasonable  charge  for  the  reconsignment 
of  grain  in  view  of  the  extra  expense  incurred  and  of 
the  extra  service  performed  by  the  railroad. 

ILLUSTRATIONS  OF  REASONABLE  CHARGES  FOR  RECONSIGNING. 

75 .  Rate  of  2  cents  per  100  pounds  for  the  service  of 
defendant  carriers  in  connection  with  reconsignment 
at  East  St.  Louis,  111.,  of  hay  in  carloads  originating 


—48— 

at  points  North,  East  and  West  thereof  and  destined 
to  Southeastern  points,  at  the  time  said  service  was 
rendered  found  unjust  and  unreasonable  to  the  ex- 
tent that  same  exceeded  IV2C  per  100  pounds.  Repar- 
ation rewarded. 

St.  Louis  Hay  d  Grain  Co.  vs.  Mobile  &  Ohio 
Railroad  Co.  et  al. 

J.  R.  Lucas  cC-  Company  vs.  Louisville  d  Nashville 
Railroad  Company;  Bartlett  Commission 
Company  vs.  Illinois  Central  Railroad  Com- 
pany et  al,  19  I.  C.  C.  Eep.,  533  (1910).  See 
also  Wool  case,  23  T.  C.  C.  Rep.,  151  (1912), 
fixing  2yoc  per  100  lbs.  as  reasonable  for  the 
privilege,  and  G.  M.  Spiegle  &  Co.  vs.  South- 
ern Railway,  25  I.  C.  C.  Rep.,  71  (1912),  fix- 
ing l^Ac  as  reasonable  for  the  privilege  on 
lumber. 


CLAIM     FOR    REFUND     RECONSIGNMENT     CHARGE    DUE    TO 
DEFECTIVE  TARIFF  DISMISSED. 

76.  During  the  months  of  September    md  October, 

1907,  when  the  shipments  in  question  moved,  the  reg- 
ulations of  the  Commission  did  not  require,  as  do  the 
present  regulations  in  Rule  10  of  Tariff  Circular  15-A, 
that  a  tariff  naming  local  rates  into  a  reconsigning 
point  must  either  specifically  show  th3  reconsigning 
privilege  and  charge  therefor  or  specifically  refer  to  the 
separate  tariff  in  Avhich  the  privilege  and  charge  are 
published.      Therefore,   Held,   That   complainant  de- 


—49— 

mand  for  a  rofnnd  of  a  recoiisign merit  char^^e  of  |2 
per  car  on  the  shipments  named  in  the  complaint,  on 
the  ground  that  the  defendants'  tariff  naming  the 
local  rates  was  defective  in  that  respect,  is  without 
merits  and  must  be  dismissed. 

Kansas  City  Hay  Company  vs.  St.  Louis  d  San 
Francisco  Railroad  Co.,  14  I.  C.  C.  Kep., 
631   (1908). 


POWERS   OF   COIVLMISSIOX    TO    RESTRICT   ALLOWANCES    FOR 
ELEVATION  TO  SHITPER. 

77.  The    Interstate    Commerce    Commission    cannot 

make  the  allowance  by  a  carrier  to  the  owner  of  an 
elevator  of  the  cost  of  the  elevation  in  transit  of  grain 
in  which  he  has  an  interest,  conditional  upon  his  fail- 
ure to  use  the  opportunity  afforded  during  the  pro- 
cess of  elevation  to  treat,  weigh,  inspect,  or  mix  the 
grain,  since  such  allowance  cannot  be  deemed  an  un- 
due preference  or  discrimination  forbidden  by  the  act 
to  regulate  commerce,  in  view  of  the  provisions  of  the 
amendatory  act  of  June  29,  1906  (34  Stat,  at  L.  584, 
chap.  3591,  U.  S.  Comp.  Stat.  Supp.,  1909,  p.  1149), 
recognizing  that  services  in  transportation,  rendered 
by  an  owner  of  the  property  transported,  are  to  be 
paid  for  by  the  carrier. 

Confining  the  allowance  by  a  carrier  to  the  owner 
of  an  elevator  for  elevating  grain  in  transit  in  which 
he  has  an  interest,  to  such  grain  as  shall  be  reshipped 


-50— 


within  ten  days,  is  within  the  power  of  the  Interstate 

Commerce  Commission. 

Interstate  Commerce  Commission  vs.  II.  J.  Diff- 
enhaugh  et  al.;  Interstate  Commerce  Com- 
mission vs.  F.  11.  Peavey  &  Co.;  Union  Pacific 
Railroad  Company  vs.  F.  H.  Peavey  d  Co., 
222  U.  S.  42,  50  L.  ed.   (1911). 


COMMISSION  RECOMMENDS  ELEVATION  ALLOWANCES. 

78.  It  appearing  that  prior  proceedings  in  regard  to 

these  elevation  allowances  comprehended  Missouri 
River  points  only,  this  proceeding  v»^as  brought  so  as 
to  include  Ohio  River  points  and  points  generally 
north  of  the  Ohio  River  and  east  of  the  Missouri  River. 

One-fourth  of  one  cent  per  bushel  held  to  be  fair 
compensation  for  transportation  elevation  at  the 
points  in  question,  but  for  both  transportation  eleva- 
tion and  commercial  elevation  at  such  points  a  fair 
compensation  would  not  be  less  than  three-fourths  of 
one  cent  per  100  pounds. 

Followin?.^  scale  of  charges  for  commercial  ele- 
vation recommended : 

For  storing,  one-fourth  cent  per  bushel  for  each 
10  days  or  part  thereof  after  the  first  10  days. 

For  clipping,  one-fourth  cent  per  bushel. 

For  cleaning,  one-fourth  cent  per  bushel. 

For  mixing  or  turning,  one-eighth  cent  per  bushel. 


—51  — 

For  sulphuring,  one-eighth  cent  per  bushel. 

For  drying,  from  1  to  lyo  cents  per  bushel. 

For  sacking,  one-half  cent  per  bushel  (sacks  and 
strings  to  be  furnished  by  owner  of  the  grain). 

flaking  of  any  order  in  this  matter  is  postponed 
until  reasonable  opportunity  has  been  given  the  par- 
ties for  an  adjustment  on  the  basis  recommended. 

Nothing  in  the  testimony  tends  to  convince  the 
Commission  that  transportation  elevation  cannot  be 
brought  within  the  ten-day  limit. 

In  the  Matter  of  Elevation  Allowances,  24  I.  C. 
C.  Rep.,  197  (1912). 


DISTINCTION     BETWEEN     CHARGES     FOR     COMMERCIAL     AND 
TRANSPORTATION  ELEVATION. 

79.  A  railroad  has  no  right  under  the  pretext  of  a 

transfer  which  it  does  not  require,  to  furnish  a  grain 
dealer  commercial  elevation  or,  what  amounts  to  the 
same  thing,  to  pay  through  an  elevation  allowance  for 
the  commercial  elevation  of  his  grain,  and  if  it  does 
so  it  must  accord  the  same  privilege  or  make  the  same 
payment  to  other  persons  and  at  other  points. 

Considering  the  Diffenbaugh  &  Updike  cases  to- 
gether, as  applied  to  the  general  subject  of  elevation 
and  transfer  in  transit,  the  Commission  concludes  that 
it  waS"^  the  intention  of  the  Supreme  Court  to  hold 
that  whatever  might  be  the  case  if  a  railroad  saw  fit 
to  confine  its  payment  to  elevation  actually  required 


—52— 

in  the  transportation  of  the  grain,  it  must,  when  it 
makes  this  allowance  to  one  elevator  under  such  cir- 
cumstances as  to  give  that  elevator  payment  for  com- 
mercial elevation,  extend  the  same  privilege  to  all 
other  elevators  similarly  situated  at  that  point. 

Present  orders  in  these  cases  struck  off  and  new 
orders  entered  requiring  defendants  not  to  exceed 
three-fourths  of  one  cent  per  100  pounds  in  the  pay- 
ment of  elevation  or  transfer  allowances  at  the  Mis- 
souri River,  and  to  confine  that  payment  to  grain  ac- 
tually passing  through  the  elevators  in  ten  days. 

Traffic  Bureau,  Merchants^  Exchange  of  St.  Louis 
vs.  Chicago,  Burlington  &  Quincg  Railroad 
Company  et  al.,  22  I.  C.  C.  Rep.,  496  (1912). 


—53— 


IX.     ABSORBING    OR   DIMINISHING   LOCAL   OR   PRO- 
PORTIONAL INBOUND  RATE. 


RATE  "IN"  CANNOT  BE  ABSORBED  OR  DIMINISHED  BY  "OUT" 
RATE  NOT  IN   EFFECT  WHEN   SHIPMENT  MOVED. 

80 .  Where  a  shipment  over  a  through  route  is  stopped 

at  an  intermediate  point  nnder  some  tariff  privilege, 
the  local  or  proportional  rate  "in"  cannot  be  ab- 
sorbed, diminished  or  affected  by  any  "out"  rate  not 
in  effect  at  the  time  when  the  traffic  moves  upon  such 
local  or  proportional  rate. 

Re  Through  Routes  and  Through  Rates,  12  I.  C. 
C.  Rep.,  163  (1907). 


/ 


-oo- 


X.     DISCRIMINATION  BETWEEN  SHIPPERS. 

CARRIER  MUST  NOT  DISCRIMINATE. 

81 .  Although  a  carrier  is  under  no  legal  obligation  to 
stop  a  commodity  in  transit  for  the  purpose  of  treat- 
ment or  reconsigument,  where  it  grants  such  privilege 
it  must  not  discriminate  between  shippers. 

St.  Louis  Hay  d  Grain  Co.  vs.  Mobile  &  Ohio  R. 
R.  Co.  ct  ah,  11  I.  C.  C.  Rep.,  90  (1905). 
See  also  Meeker- J  ones- Jewell  Milling  Com- 
pamj  vs.  B.  &  O.  R.  R.  Co.  et  ah,  14  I.  C.  C. 
Rep.,  356. 

PRIVILEGE,  WHEN   ALLOWED,  MUST   BE   EXTENDED  TO  ALL 
SHIPPERS  ALIKE. 

82.  Defendant,  the  I.  I.  &  I.  R.  R.  agreed  with  com- 
plainant for  a  stated  period  to  permit  live  stock, 
shipped  under  through  rates  from  points  in  Illinois 
to  eastern  destinations,  to  be  unloaded  at  its  stock 
pens  at  ^Vest  Kankakee,  111.,  where  the  stock  was  fed, 
watered,  sorted  and  reloaded  into  carloads  suitable 
for  the  market  to  which  consigned.  Held,  That  the 
method  of  thus  sorting  the  through  shipments  was  a 
privilege  like  all  transit  privileges  and  should  be  ex- 
tended to  all  shippers  alike. 

Shiel  cG  Co.  vs.  III.  Central  R.  R.  Co.  et  al,  12  I.  C. 
C.  Rep.,  210  ( 1907 ) .  See  also  14  I.  C.  C.  Rep., 
356,  supra. 


—56- 


PRIVILEGE  WILL  NOT  BE  ESTABLISHED  OR  EXTENDED  IN  AB- 
SENCE OF  DISCRIMINATION. 

83.  Respecting  the  refining  in  transit  privilege  at 
Dallas,  Greenville,  Sherman,  and  Ft.  Worth,  Texas, 
on  oil  for  export  through  Galveston,  Held,  That  the 
Commission  does  not  endeavor  to  establish  or  extend 
transit  privileges  in  the  absence  of  discrimination, 
proof  of  which  in  this  case  is  wanting;  but  in  a  recent 
tariff  the  privilege  here  asked  for  apparently  has  been 
granted. 

Anadarko  Cotton  Oil  Co.  et  al.  vs.  Atchison,  To- 
peka  (G  Santa  Fe  Rivy.  Co.  et  al,  20  I.  C.  C. 
Rep.,  43  (1910). 

84.  Allowance  of  the  privilege  by  a  carrier  to  ship- 
pers in  one  section  must  be  without  wrongful  preju- 
dice to  the  rights  of  shippers  in  another  section  served 
by  its  line. 

Koch  vs.  r.  R.  R.  Co.  et  aJ.,  10  I.  C.  C.  Rep.,  675 
(1905). 


DISCRIMINATION  IN  RULES  AND  INTERPRETATION  THEREOF 
BETWEEN  SHIPPERS. 

85.  The  various  complainants  herein  seek  reparation 

caused  by  alleged  undue  discrimination  against  them 
in  favor  of  competitors  in  elevator  allowances  made 
by  defendant  at  Omaha  and  Council  Bluffs ;  defendant 
declined  to  pay  these  allowances,  alleging  that  they 
were  unlav/fnl  and  that  the  terms  of  the  tariffs  were 


—57— 

not  complied  with;  Held,  That  this  Commission  can 
not,  without  stultifying-  itself,  make  any  ruling  which 
will  condemn  as  unlawful  the  payment  of  these  allow- 
ances during  the  time  they  have  been  expressly  sanc- 
tioned by  its  decisions. 

The  Commission  finds  with  respect  to  all  the  ship- 
ments involved  in  these  cases  that  the  provision  in  the 
tariffs  requiring  a  return  to  defendant  of  the  car  with- 
in forty-eight  hours  as  a  condition  precedent  to  the 
payment  of  the  allowance  is  unjust,  unreasonable,  un- 
duly discriminatory,  and  unlawful;  and  that  com- 
plainants are  entitled  to  damages  by  reason  of  the 
maintenance  of  such  unlawful  provision  which  equal 
the  amount  which  would  have  accrued  to  them  by  way 
of  this  elevation  allowance,  provided  the  tariff  had 
contained  no  such  provision.  Defendant  has  paid 
the  competitors  of  complainants  this  elevation  allow- 
ance ;  it  has  at  the  same  time  declined  to  pay  it  to  com- 
plainants. The  Commission  finds  that  defendants' 
reason  for  so  declining  is  not  a  valid  one,  and  that  it 
has  been  guilty  of  undue  discrimination  against  com- 
plainants, for  which  they  are  entitled  to  recover  as 
damages  the  difference  between  what  has  been  paid  to 
their  competitors  and  to  them. 

Nebraska  loioa  Grain  Company  vs.  Union  Pacific 
Railroad  Company;  Crowell  Luniher  d  Grain 
Co.  vs.  Union  Pacific  Railroad  Company; 
Updike  Grain  Company  vs.  Union  Pacific 
Railroad  Company;  Cavers  Elevator  Com- 
pany vs.  Union  Pacific  Railroad  Company, 
15  I.  C.  C.  Rep.,  90  (1909). 


—58— 

86.  Tho  carrier  cannot  pay  one  shipper  for  transpor- 

tation service  and  enforce  an  arbitrary  rule  which  de- 
prives another  of  compensation  for  similar  service. 
To  receive  the  beneiit  of  such  work  by  one  elevator 
without  makinf>-  compensation  therefor  would,  in  ef- 
fect, be  the  involuntary  payment  by  such  elevator  of 
a  rebate  to  the  railroad  company,  for  it  would  enable 
the  railroad  to  receive  more  net  freight  on  its  grain 
than  was  received  from  its  competitor  located  on  the 
railroad's  tracks.  This  cannot  be  directly  done,  nor 
indirectly  by  means  of  regulation.  A  rule  apparently 
fair  on  its  face  and  reasonable  in  its  terms,  may,  in 
fact,  be  unfair  and  unreasonable  if  it  operates  so  as 
to  give  one  an  advantage  of  which  another  similarly 
situated  cannot  avail  himself. 

Union  Pacific  Company  vs.  Updike  Grain  Co.  d 
Crowell  Lumber  d  Grain  Co.,  222  U.  S.,  48, 
52  L.  ed.  (1911). 


—59— 


XL     DISCRIMINATION   BETWEEN  LOCALITIES. 


NOT  NECESSARILY  UNLAWFUL. 

87.  The  granting  of  milling  in  transit  privileges  to 
one  territory  and  denying  such  privileges  to  another 
territory  is  not  necessarily  nnlawfnl. 

Koch  vs.  P.  R.  R.  Co.  et  ah,  10  I.  C.  C.  Rep.,  675 
(1905). 

88.  Milling  in  transit  privileges  on  grain  were  al- 
lowed on  the  Penna.  system  west  of  Pittsburg,  but 
denied  to  points  east  of  Pittsburg.  The  privilege  was 
allowed  at  a  charge  of  li/oc  per  100  lbs.  above  the 
through  rate  on  the  grain  from  point  of  origin  to  the 
point  where  the  product  consigned  from  the  mill  was 
destined.  Grain  milled  at  points  east  of  Pittsburg 
was  charged  full  rate  on  the  grain  to  the  mill  and  full 
rate  on  the  product  from  the  mill  to  destination,  the 
result  being  that  western  milled  products  had  an  im- 
portant advantage  over  western  grain  milled  at  points 
east  of  Pittsburg.  Milling  in  transit  on  wheat  and 
corn  originating  west  of  Pittsburg  was,  however,  per- 
mitted by  the  Pennsylvania  Co.  at  points  east  thereof 
when  the  product  was  shipped  to  New  York,  Phila- 
delphia or  Baltimore.  On  complaint  by  a  miller  at 
Harrisburg  that  denial  of  the  milling  in  transit  privi- 
lege to  that  point  was  an  unjust  discrimination;  Held, 
That  the  granting  of  transit  milling  west  of  Pittsburg 


—60— 

and  denying:  it  to  millers  at  Harrisburg  was  not  nec- 
essarily unlawfnl;  that  while  no  good  reason  was 
shown  why  milling  in  transit  should  be  granted  on 
shipments  of  wheat  and  corn  to  New  York,  Philadel- 
phia or  Baltimore  and  denied  on  shipments  to  local 
points,  the  proof  was  too  incomplete  respecting  local 
conditions  to  warrant  a  decision  which,  in  principle, 
wonld  involve  a  general  extension  of  transit  privileges 
into  a  large  territory  where  such  privileges  had  not 
before  been  allowed. 
Ihid. 

NOT  UNDUE  WHERE  CONDITIONS  DIFFER. 

89.  Complainants,  owning  cotton  compresses  at  Ard- 

more  and  Pauls  Valley,  Okla.,  respectively,  allege  that 
the  practice  of  defendants  whereby  cotton  originating 
at  points  north  of  Ardmore  and  Pauls  Valley  is  car- 
ried by  those  points  to  Gainesville,  Tex.,  for  compres- 
sion, while  cotton  originating  at  points  south  of 
Gainesville  is  not  permitted  to  be  carried  north 
through  Gainesville  to  Ardmore  and  Pauls  Valley  for 
compression,  results  in  unjust  discrimination  against 
complainants;  and  ask  that  this  Commission  establish 
a  rule  requiring  defendants  to  have  all  cotton  com- 
pressed by  the  compress  nearest  the  point  of  origin. 

Carriers  are  permitted  to  adjust  their  rates,  reg- 
ulations, and  practices  with  due  regard  to  the  circum- 
stances and  conditions  confronting  them  and  the  nat- 
ural currents  and  laws  of  trade  and  commerce. 


—61— 

Held,  under  the  circumstances  and  conditions 
shown  to  exist  in  these  cases,  that  the  discrimination 
complained  of  is  not  undue.     Complaints  dismissed. 

Chickasaw  Compress  Co.  vs.  Gulf,  Colorado  & 
Santa  Fe  Rwy.  Co.  and  Atchison,  Topeka  & 
Santa  Fe  Rwy.  Co. 

Pauls  Valley  Compress  d  Storage  Co.  vs.  Gulf, 
Colorado  &  Santa  Fe  Rwy.  Co.  and  Atchison, 
Topeka  cC-  Santa  Fe  Rivy.  Co.,  13  I.  C.  C.  Rep., 
187  (1908). 


NOT   UNJUST   WHERE   THERE   IS   A   DISSIMILARITY   OF   CONDI- 
TIONS. 

90.  On  complaint  that  millers  of  rice  at  Houston, 

Texas,  are  subjected  to  undue  prejudice  and  disad- 
vantage because  storage  in  transit  and  reconsignment 
privileges  are  provided  at  Houston  on  rice  destined 
to  New  Orleans,  La.,  while  similar  privileges  are  de- 
nied at  Louisiana  points  on  rice  destined  to  Houston, 
and  of  the  maintenance  of  a  rate  of  19c  from  Houston 
to  New  Orleans  while  according  a  rate  of  15c  from 
Clinton,  Texas,  a  point  about  8  miles  south  of  Hous- 
ton, Texas,  the  traffic  from  Clinton  passing  through 
Houston  to  reach  New  Orleans;  Held  (1)  That  we 
are  not  warranted  in  finding  that  there  is  any  unjust 
discrimination  because  of  the  failure  of  rail  lines 
reaching  New  Orleans  to  provide  for  transit  privilege 
on  shipments  of  rice  from  New  Orleans  to  Texas,  and 
(2)  a  prima  facie  case  of  dissimilarity  of  conditions 
between  Houston  and  Clinton  under  the  fourth  sec- 


—02—  

tion  has  been  made.  As  the  facts  now  appear  no  order 
which  miiiht  disturb  the  whole  system  of  rice  rates 
in  that  section  of  the  country  will  be  entered.  Com- 
plaint dismissed  without  prejudice. 

liaijo)!  City  Rice  Mills  et  ul.  vs.  Texas  c(-  New  Or- 
leans R.  R.  Co.  et  ah,  18  I.  C.  C.  Rep.,  490 
(1910). 

DOES  NOT  NECESSARILY  CONSTITUTE  UNDUE  PREJUDICE. 

91.  The  defendant  permits  milling  in  transit  at  St. 

Joseph  and  Kansas  City,  Mo.,  of  corn  originating  at 
points  on  the  St.  Joseph  &  Grand  Island  Kwy.,  the 
product  of  which  is  shipped  to  Pacific  Coast  terminals 
at  the  through  rate  from  point  of  origin  to  the  des- 
tination of  the  product,  and  under  this  arrangement 
millers  at  St.  Joseph  and  Kansas  City  may  buy  their 
corn  at  points  west  thereof  on  the  St.  Joseph  &  Grand 
Island  Rwy. ;  while  complainants  whose  mills  are  at 
Jililford  and  Firth,  Neb.,  on  the  Chicago,  Burlington 
&  Quincy  R.  R.  are  restricted  in  the  purchase  of  corn 
to  be  milled  by  them  in  transit  and  forwarded  to  Pacific 
Coast  points  to  territory  east  of  their  mills;  Held, 
That  upon  the  facts  of  record,  the  adjustment  com- 
plained of  does  not  constitute  undue  prejudice  against 
Mili'ord  and  Firth  within  the  meaning  of  the  act  to 
regulate  commerce. 

F.  H.  Johnson  cG  Co.  et  al  rs.  A.  T.  tO  *S'.  F.  Rwy. 
Co.,  21  I.  C.  C.  Rep.,  637  (1911). 


—63— 


WHERE  RATES  ARE  NOT  UNREASONABLE. 

92.  Defendants  maintain  or  participate  in  rates  on 
cottonseed  oil  in  carloads  from  St.  Louis,  Mo.,  and 
East  St.  Louis,  111.,  to  Chicago,  111.,  Louisville,  Ky., 
and  Cincinnati,  Ohio,  which  are  relatively  lower  than 
the  rates  from  Cairo,  111.,  to  the  same  destination; 
but  the  lower  rates  from  St.  Louis  and  East  St.  Louis 
are  made  by  lines  which  do  not  reach  Cairo,  and  de- 
fendants can  not  control  the  rates  from  those  points; 
Held,  That  the  rates  from  Cairo  are  not  shown  to  be 
unreasonable,  and  defendants  are  not  guilty  of  undue 
prejudice  against  that  point  within  the  meaning  of 
Section  3  of  the  act  to  regulate  commerce. 

Roberts  Cotton  Oil  Company  vs.  Illinois  Central 
Railroad  Contpany  et  al,  21  I.  C.  C.  Rep., 
248   (1911). 

WHERE  CONDITIONS  ARE  SUBSTANTIALLY  DISSIMILAR. 

93.  There  is  no  transit  arrangement  at  these  local 
points  but  the  effect  of  these  local  rates  was  assumed 
to  be  similar  to  a  transit  arrangement  and  avoided  the 
billing  of  the  property  at  one  rate,  collections  of  the 
charges  upon  that  rate,  and  refund  to  basis  of  a  lower 
rate  when  the  traffic  was  reshipped  from  the  local 
point.  Defendant  has  filed  an  exhibit  showing  a  com- 
parative statement  of  charges  on  stave  bolts,  inbound 
and  stave  outbound  from  local  point  on  its  line  based 
on  3  lbs.  of  raw  material  inbound  to  1  lb.  of  stave  out- 
bound.    This  exhibit  shows  that  from  stave  bolt  man- 


-G4- 


ufactui-iiig  phmts  on  d>;'f('ii(l:iiits'  line  and  IVoni  Padii- 
cah,  the  ag^gregate  cost  of  moving  the  raw  material 
into  the  local  point  and  out  as  a  finished  product  to 
the  final  destination  is,  generally  speaking,  higher 
than  a  similar  combination  npon  Padncah. 

Upon  consideration  of  all  the  evidence  of  record 
we  find  no  reason  for  ordering  defendant  to  establish 
transit  rates  at  Padncah  or  for  reqniring  it  to  publish 
flat  inbound  rates  which  will  be  as  low  as  the  transit 
rates  of  the  111.  Central.  The  conditions  surrounding 
the  movement  of  traffic  over  the  two  lines  are  substan- 
tially dissimilar.  The  111.  Central  may  be  of  opinion 
that  the  maintenance  of  transit  rates  is  to  its  interest ; 
but  if  so,  this  affords  no  reason  for  reqniring  the  Nash- 
ville, C.  &  St.  L.  Rwy.  Co.  to  take  similar  action. 

Paducah  Cooperage  Co.  vs.  Nashville^  C.  tG  ^S^.  L. 
Ricij.,  22  I.  C.  C.  Rep.,  226  (1912). 


WHERE    DISADVANTAGES    ARE    NOT    THE    RESULT    OF    UNJUST 
DISCRIMINATION. 

94.  In  the  absence  of  undue  discrimination  between 

shippers  or  milling  points  the  Commission  has  uni- 
formly refused  to  require  a  carrier  to  establish  tran- 
sit privileges.  The  complainant  labors  under  a  dis- 
advantage in  the  marketing  of  its  products  at  consum- 
ing points  on  the  line  of  the  International  &  Great 
Northern  in  competition  with  mills  that  are  situated 
on  other  grain  carrying  lines.  But  this  disadvantage 
is  not  the  result  of  unjust  discrimination  on  the  part 
of  the  defendants.     Under  the  pleadings  and  upon  the 


— H5— 

facts  disclosed  of  record  we  are  unable  to  find  any 
ground  for  granting  the  relief  sought.  The  complaint 
must  therefore  be  dismissed. 

Piano  Bulling  Co.  vs.  St.  Louis  S-W.  Rwy.  Co. 
et  al,  22  I.  C.  C.  Kep.,  360  (1912). 


WHERE    ONLY    ONE    OF    SEVERAL    DEFENDANTS     SERVES    ALL 
POINTS  INVOLVED. 

95.  The  complainant  alleges  that  defendants'  tariffs, 

which  provide  that  rough  grains  may  be  milled  or 
otherwise  treated  in  transit  at  Minneapolis,  St.  Paul, 
and  Minnesota  Transfer,  give  undue  preference  and 
advantage  to  those  points,  and  subject  Janesville, 
Wis.,  to  undue  prejudice  and  disadvantage;  Held 

1.  That,  as  the  C.  M.  &  St.  P.  Rwy.  Co.  is  the 
only  defendant  serving  all  the  points  involved,  the 
other  defendants  cannot  be  guilty  of  violating  the  act 
as  alleged. 

Johnson  &  Co.  vs.  A.  T.  cG  S.  F.  Rwy.  Co.,  21  I.  C. 
C.  Rep.,  637  (1911). 


WHERE  CONDITIONS  ARE  NOT  ALIKE. 

2.  That  the  action  of  the  St.  Paul  road  in  grant- 
ing the  transit  privileges  at  the  twin  cities  was  clearly 
forced  by  competition  between  the  carriers  and  the 
circumstances  and  conditions  surrounding  the  trans- 
portation of  grain  products  from  the  twin  cities  to 
Pacific  Coast  points  and  from  Janesville  to  the  same 


—66— 

destinations  are  not  so  clearly  alike  as  to  constrain 
the  Commission  to  order  this  carrier  either  to  cease 
and  desist  from  according  the  present  privileges  at 
the  t^^■in  cities  or  to  establish  similar  privileges  at 
Janesville. 

Complaint  dismissed. 

Blodgett  3Iilling  Co.  vs.  C.  M.  d  St.  P.  Rwy.  Co. 
et  al,  23  I.  C.  C.  Rep.,  448  (1912). 


EQUALIZATIOX  OF  ADVANTAGES  OF  LOCALITIES. 

96.  A  differential  in   the  rales  on  two  commodities 

which  in  itself  is  not  unlawful,  and  which  results  in 
benefit  to  one  locality,  ought  not  to  be  changed  for 
the  purpose  of  equalizing  an  advantage  enjoyed  by 
another  locality  from  being  granted  milling  in  transit 
privileges. 

Howard  Mills  Co.  vs.  Alissouri  Pacific  Rwy.  Co. 
et  al.,  12  I.  C.  C.  Hep.,  258  (1907).  See  also 
25  I.  C.  C.  Rep.,  90  (1912),  in  the  matter  of 
the  investigation  and  suspension  of  new  mill- 
ing in  transit  regulations  at  certain  stations 
on  the  Chicago  &  Northwestern  and  Chicago, 
St.  Paul,  Minneapolis  &  Omaha  Railways — 
v.'herein  the  Commission  stated  ''there  is  no 
reason  m  hy  mills  at  Milwaukee  should  reach 
in  competition  with  mills  between  Minneap- 
olis and  ^Milwaukee  the  great  bulk  of  this 
intermediate  territory,  involving  in  most  in- 
stances as  such  an  arrangement  does  a  long 
back  haul,  or  its  equivalent,  from  Milwaukee." 


-67- 


NOT  WITHIN  PROVINCE  OF  COMMISSION  TO  OVERCOME  DISAD- 
VANTAGES OF  LOCATION  BY  ADJUSTMENT  OF  TRANSPOR- 
TATION CHARGES. 

97.  Complainants,  situated  in  the  eastern  portion  of 

Washington  Co.,  Me.,  allege  that  by  reason  of  their 
location  they  cannot  take  advantage  of  the  milling  in 
transit  privilege  on  corn,  although  their  competitors  at 
Bangor  and  Lewiston,  Me.,  can  do  so,  and  therefore  al- 
lowance of  the  transit  privilege  at  Bangor  and  Lewis- 
ton  constitutes  undue  discrimination  against  com- 
plainants; Held,  That  the  disadvantage  under  which 
complainants  labor  is  primarily  due  to  their  unfavor- 
able location  and  that  it  is  not  the  province  of  the 
Commission  to  overcome  disadvantages  of  this  nature 
by  adjustment  of  transportation  charges. 

^.  S.  Quimhy  et  al.  vs.  Maine  Central  R.  R.  Co.  ct 
al.,  13  I.  C.  C.  Rep.,  246  (1908). 


NOT    WITHIN     PROVINCE    OF    COMIVIISSION     TO     TAKE    AWAY 
ADVANTAGES  OF  LOCATION. 

98.  Whatever  advantages  dealers  in  grain  may  have 

by  reason  of  their  location,  either  at  the  twin  cities  or 
west  thereof,  il  is  not  the  province  of  this  Commission 
to  take  away. 

I    Blodgett  .Milling  Co.  vs.  C.  M.  d-  St.  P.  Ricy.  Co. 
\  et  al,  23  I.  C.  C.  Rep.,  448  (1912). 


—68- 


WHERE   DISCRIMINATION    IS   UNLAWFUL   BETWEEN   LOCAL- 
ITIES. 

99.  It  appears  that  defendants'  rule  for  compression 

of  cotton  in  transit  allows  uncompressed  cotton,  on 
demand  of  shippers,  to  be  taken  out  of  Muskogee,  Ind. 
T.,  and  points  north,  including  the  Tulsa  division  for 
compression  at  South  McAlester,  Ind.  T.,  but  does  not 
allow  uncompressed  cotton  to  be  taken  out  of  or 
through  South  INIcAlester  for  compression  at  Musko- 
gee. A  large  portion  of  the  cotton  grown  in  the  ter- 
ritory tributary  to  Muskogee  is  sold  in  the  east,  and 
is  always  compressed  before  being  loaded  for  the  long 
haul.  Under  the  practice  of  compressing  at  South 
McAlester  uncompressed  cotton  originating  at  Mus- 
kogee and  points  north  is  hauled  by  defendant  to 
South  McAlester,  unloaded  at  that  compress,  com- 
pressed, reloaded,  and  then  hauled  back  over  the  same 
line  of  railroad,  passing  again  through  ;Muskogee  to 
defendant's  eastern  terminus,  involving  an  extra  ser- 
vice of  124  miles  for  which  defendant  receives  no  com- 
pensation :  Held,  upon  the  foregoing  facts,  that  de- 
fendant's said  rule  for  compression  of  cotton  results 
in  undue  prejudice  against  Muskogee,  and  that  de- 
fendant should  grant  all  the  privileges  to  one  compres- 
sion point  herein  considered  that  it  grants  to  the  other. 
Muskogee  Commercial  Club  and  Muskogee  Traffic 
Bureau  vs.  3Iissouri,  Kansas  cG  Texas  Rail- 
icay  Comj)any,  12  I.  C.  C.  Rep.,  312  (1907). 

100.  To  facilitate  the  handling  of  cattle  for  feeding 

purposes    defendants    have    permitted    them    to    be 


—69— 

brought  in,  from  various  breeding  pastures,  stopped 
otf  for  a  time  to  be  fattened,  and  then  sent  on  to  mar- 
ket at  the  through  rate  plus  some  additional  charge 
for  the  privilege,  and  plus  also  the  local  rate  from  the 
feeding  point  for  the  additional  weight  which  the  cat- 
tle take  on  in  the  process  of  fattening.  This  feeding 
in  transit  privilege  is  extended  by  the  tariffs  of  de- 
fendants in  territory  west  of  the  Missouri  River,  but 
is  not  permitted  at  Iowa  points;  Held,  That  this  re- 
sults in  unlawful  discrimination  against  Iowa  points 
and  the  complainant. 

Corn  Belt  Meat  Producers'  Ass7i.  vs.  C.  B.  cC-  Q. 

Rioy.  et  «?.,  14  I.  C.  C.  Rep.,  37G  (1908). 

I 
101.  Shipments  of  grain,  grain  products,  and  hay  are 

carried  from  the  Ohio  and  Mississippi  River  crossings 
and  points  north  and  west  thereof  to  Nashville  at 
local  rates,  and  quantities  of  these  articles  are  after- 
wards reshipped  and  rebilled  from  Nashville  to  points 
in  the  southwest  at  the  local  rate,  but  the  difference 
between  the  sum  of  the  locals  thus  collected  and  the 
through  rate  from  crossing  point  to  ultimate  destina- 
tion is  refunded  to  the  shipper  through  the  claims  de- 
partment of  the  railroad  company.  There  is  no  agree- 
ment for  through  carriage  between  shipper  and  car- 
rier at  the  original  point  of  shipment,  no  other  desti- 
nation than  Nashville  is  named,  and  upon  delivery  of 
grain  to  that  point  it  loses  its  identity  and  is  in  every 
respect  a  local  shipment;  Held,  That  the  circum- 
stances and  conditions  prevailing  at  Nashville  are  not 
so  dissimilar  from  those  prevailing  at  other  points  in 
the  southwest  as  to  warrant  a  continuance  of  this 


—70- 


privilege  at  Nashville  without  iindne  discrimination, 
to  the  prejudice  and  disadvantage  of  points  in  that 
territory  not  having  a  similar  privilege;  Held,  That 
this  privilege  operates  as  a  device  by  which  traffic  may 
move  at  less  than  the  lawful  tariff  rate. 

W.  8.  Duncan  cG  Companj/  ct  al.  vs.  Nashville, 
Chattanooga  cG  8t.  Louis  Railivay  Company 
et  al,  16  I.  C.  C.  Rep.,  590  (1909). 

102 .  During  a  part  of  1906  defendant,  by  provisions  in 
its  tariffs,  applied  to  the  transportation  from  Omaha, 
Neb.,  and  Council  Bluffs,  Iowa,  to  Cairo  and  other 
Ohio  River  crossings,  of  grain  placed  in  elevators  at 
the  latter  points  and  reshipped  thence  to  southeastern 
destinations  proportional  rates  less  than  the  local 
rates  paid  from  said  points  of  origin  to  said  destina- 
tions, but  no  such  transit  privilege  was  allowed  at 
Henderson,  Ky. ;  Held,  That  failure  to  allow  the  pro- 
portional rate  and  transit  privilege  at  Henderson  un- 
lawfully discriminated  against  complainants'  business 
at  that  point.     Reparation  awarded. 

Henderson  Elevator  Conipaui/  vs.  Illinois  Central 
Railroad  Conipaiii/,  17  I.  C.  C.  Rep.,  573 
(1910). 

103.  In  Heckcr,  Jones,  Jeivell  3Iilling  Co.  vs.  B.  tG  0. 
R.  R.  Co.  et  al.,  14  I.  C.  C.  Rep.,  350,  the  Commission 
held  that  if  carriers  leading  to  the  seaboard  granted  a 
milling  in  transit  rate  to  flour  for  export  they  should 
accord  the  same  rate  upon  wheat  brought  to  the  port 
of  export  and  there  ground  for  export.  This  order 
was  sustained  by  the  circuit  court  of  the  Unite<l  States 


—71— 

upon  proceedings  brought  by  the  carriers  to  enjoin 
its  enforcement.  N.  Y.  C.  and  E.  R.  R.  Co.  et  al.  vs. 
Interstate  Commerce  Commission,  168  Fed.  Rep.,  131. 

While,  as  already  stated,  the  testimony  showed 
that  the  complainant  blended  in  the  grinding  wheat 
brought  in  by  rail  with  that  brought  in  by  water,  the 
complainant,  upon  the  last  hearing,  testified  that  it 
might  be  possible  to  keep  the  product  of  the  water- 
borne  grain  distinct.  If  such  changes  should  be  made 
in  the  transit  privileges  of  the  complainant  as  to  pre- 
vent his  present  method  of  business,  the  opportunity 
should  perhaps  be  given  him  to  show  whether,  under 
a  different  method,  the  identity  of  the  grain  can  be 
preserved,  in  which  event  the  defendants  ought  per- 
haps to  be  required  to  accord  to  him  at  Detroit  the 
same  milling  in  transit  privilege  which  we  required 
of  the  carriers  at  New  York. 

David  Stott  vs.  Michigan  Central  Railroad  Com- 
pany et  al,  18  I.  C.  C.  Rep.,  582  (1910). 

104.  The  substantial   objection   which   the   defendant 

urges  to  extending  these  transit  privileges  at  interior 
points  is  the  additional  trouble  and  expense  which 
would  be  required  to  police  such  regulations. 

We  are  of  the  opinion  and  hold  that  if  the  Illinois 
Central  accords  at  Cairo  transit  privileges  in  the 
handling  of  grain  which  it  declines  to  accord  to  grain 
dealers  at  Decatur  it  is  thereby  guilty  of  undue  dis- 
crimination against  the  grain  dealer  at  the  latter 
point,  and  that  an  order  should  be  issued  requiring 


-72— 


this  defendaut  to  cease  and  desist  from  that  discrim- 
ination. We  do  not  hold  that  every  village  is  neces- 
sarily entitled  to  all  the  privileges  of  a  market,  but 
confine  this  present  decision  to  the  two  localities  be- 
fore us. 

Wm.  H.  Suffern  Grain  Co.  vs.  Illinois  Central  R. 
R.  et  al,  22  I.  C.  C.  Eep.,  178  (1911). 

105.  This  is  in  accordance  with  the  decision  of  the 

Commission  in  Koch  vs.  P.  R.  R.  Co..  10  I.  C.  C.  Rep., 
675,  wherein  it  was  held :  Shippers  are  not  entitled  as 
a  matter  of  right  to  mill  grain  in  transit  and  forward 
the  mill's  product  under  the  through  rate  in  force  on 
the  grain  from  the  point  of  origin  to  the  place  of  ulti- 
mate destination;  but  the  allowance  of  the  privilege 
by  a  carrier  to  shippers  in  one  section  must  be  without 
wrongful  prejudice  to  the  right  of  shippers  in  another 
section  served  by  its  line.  See  also  Celina  Mill  d  Ele- 
vator Co.  vs.  St.  L.  S.  W.  Rtvy.  Co.,  15  I.  C.  C.  Eep., 
138.  We  find  that  the  charges  imposed  in  connection 
with  the  milling  in  transit  privilege  at  Newport,  Tenn., 
are  unreasonable,  and  also  that  in  this  respect  New- 
port is  discriminated  against  in  favor  of  Johnson  City. 
It  will  be  ordered  that  this  discrimination  shall  cease 
and  that  the  defendants  shall  charge  no  more  for  the 
milling  in  transit  privilege  extended  at  Newport  on 
lumber  shipments  than  is  contemporaneously  imposed 
at  Johnson  City. 

George  M.  Spiegle  d  Company  et  al.  vs.  Southern 
Raihcay  Co.,  19  I.  C.  C.  Rep.,  522  (1910). 


106 


—73- 

In  the  original  report  and  order  in  this  case,  16 
I.  C.  C.  Rep.,  590,  it  was  found,  among-  other  things, 
that  the  reshipping  or  rebilling  privilege  permitted  in 
the  tariffs  of  defendants  on  grain,  grain  products,  and 
hay  at  Nashville,  Tenn.,  was  unlawful,  and  accorded 
to  that  city  undue  and  unreasonable  preference  and 
advantage  and  subjected  complainant  cities  to  undue 
and  unreasonable  prejudice  and  disadvantage,  and  the 
carriers  were  ordered  to  cease  and  desist  from  further 
permitting  such  transit  or  reshipping  privilege.     The 
order  was  suspended  pending  an  investigation  by  the 
Commission,  upon  its  own  initiative,  of  the  evils  at- 
tendant upon  transit  privilege  generally.     When  the 
report  in  that  case  was  made  in  the  Matter  of  Substi- 
tution of  Tonnage  at  Transit  Points,  18  I.  C.  C.  Rep., 
280,  and  the  privilege  as  it  had  obtained  theretofore 
at  Nashville  was  modified  in  accordance  with  the  re- 
port, a  further  hearing  was  granted  in  this  case  to 
ascertain  whether  or  not  the  existence  of  the  privilege 
at  Nashville,  while  denied  at  all  other  points  south  of 
the  Ohio  River  and  east  of  the  Mississippi,  constituted 
an  unreasonable  preference  or  advantage  and  undue 
and  unreasonable  prejudice  and  disadvantage  in  vio- 
lation of  section  5  of  the  act  to  regulate  commerce. 

After  further  hearing  and  oral  argument  on  this 
particular  issue;  Held,  That  the  matters  and  things 
complained  of  herein  constitute  a  violation  of  section 
3  of  the  act  to  regulate  commerce. 

W.  8.  Duncan  d  Company  et  al.  vs.  Nashville, 
Chattanooga  d  St.  Louis  Rwy.  Co.  ct  al,  21 
I.  C.  C.  Rep.,  186  (1911). 


\ 


—74—  

107.  Complainants  are  owners  and  operators  of  grain 
elevators  located  at  points  in  Indiana  and  Illinois,  on 
the  line  of  the  principal  defendant.  Under  the  tariffs 
of  other  roads  which  serve  complainants'  competitors 
in  the  same  producing  territory  grain  can  be  unloaded 
into  elevators  at  Chicago,  111.,  and  there  treated  and 
shipped  on  at  the  balance  of  a  through  rate  from  point 
of  origin  to  destination.  Said  defendant  is  a  party  to 
such  tariffs  and  participates  in  the  through  rates, 
but  it  refuses  to  grant  like  rates,  or  to  allow  any  tran- 
sit privilege  at  Chicago,  or  grain  from  complainants' 
elevators;  its  purpose  being  to  hold  such  grain  to  its 
own  line  in  order  to  get  the  larger  revenue  incident  to 
the  longer  haul  to  eastern  markets;  Held,  That  such 
course  of  conduct  constitutes  an  undue  discrimination 
against  complainants  from  which  the  carrier  should 
be  required  to  desist. 

Van  Natta  Bros,  et  al.  vs.  C.  C.  C.  d  St.  L.  Rwy. 
Co.  et  al.,  23  I.  C.  C.  Kep.,  1  (1912). 

108 .  Nor  may  a  Trunk  Line  set  up  a  milling  in  transit 
privilege  with  a  common  carrier  tap  line  by  which  the 
lumber  rate  is  extended  back  through  the  mill  point 
to  the  tree  in  the  forest  unless  it  pursues  the  same 
course  with  respect  to  forests  on  its  own  line.  That 
would  be  an  unlawful  preference. 

It  will  suffice  to  say  that  any  milling  in  transit 
rates  proposed  for  our  approval  with  the  Tap  Line 
recognized  by  the  Commission  as  a  common  carrier 
-must  be  adjusted  on  a  non-discriminatory  basis,  and 


-75- 


the  Tap  Line  division,  as  heretofore  stated,  must  be 
fixed  in  an  amount  that  will  not  effect  a  rebate  to  the 
industry. 

Tap  Line  Case,  23  I.  C.  C.  Rep.,  277  (1912). 

109.  St.  Louis  in  all  instances,  and  Chicago  in  most 

instances,  have  been  able  to  so  handle  wool  originat- 
ing in  the  middle  region  and  to  some  extent  upon  the 
Santa  Fe.  Most,  if  not  all,  other  cities  have  been  ex- 
cluded from  this  privilege. 

In  the  past  Omaha  has  enjoyed,  to  a  limited  ex- 
tent, a  transit  privilege — that  is,  the  privilege  of  stop- 
ping off  this  wool  and  subsequently  sending  it  on  at 
the  balance  of  the  through  rate.  That  locality  is  now 
before  the  Commission  demanding  that  this  privilege 
shall  be  so  broadened  as  to  put  that  community  upon 
an  equality  with  St.  Louis. 

Hitherto  Detroit  has  desired  to  transact  a  wool 
business  of  this  character  but  has  been  unable  to  do 
so  for  the  reason  that  the  freight  rate  was  against  it. 
That  locality  now  insists  that  it  shall  be  granted  some 
sort  of  transit  privilege  or  some  system  of  in  and  out 
rates  which  shall  enable  it  to  transact  this  business 
upon  an  equality  with  Chicago  and  St.  Louis. 

Chicago  and  St.  Louis  have  appeared,  demanding 
that  the  privilege  which  they  have  enjoyed  in  the  past 
and  under  which  those  markets  have  grown  up  shall 
be  in  some  form  perpetuated. 

We  have  therefore  before  us  the  general  question, 
to  what  extent  these  transit  privileges  shall  be  per- 
mitted or  required. 


—76- 


It  is  patent  that  the  ability  of  St.  Lonis  and  Chi- 
cago to  handle  this  wool  upon  what  is  equivalent  to 
the  through  rate,  while  Omaha  and  Detroit  cannot  do 
so,  results  not  from  any  natural  advantage  possessed 
by  these  favored  communities,  but  solely  from  the  arti- 
ficial circumstances  that  the  tariffs  of  these  carriers 
are  so  constructed  as  to  "break"  at  these  points. 

In  110  case  have  we  declined  to  establish  a  transit 
privilege  where  the  facts  showed  that  the  establish- 
ment of  that  privilege  was  required.  Upon  further 
consideration  of  the  subject  we  hold  that  we  may  in  a 
case  like  this,  require  carriers  to  accord  that  privilege. 
(No  order  was  issued  but  carriers  were  given  until 
May  1  to  readjust  in  accordance  with  opinion). 

R.  R.  Com.  of  Oregon — National  Wool  Growers 
Assn.  vs.  Oregon  S.  L.  R.  R.  Co.  et  ah,  23  I. 
C.  C.  Eep.,  151  (1912). 

110.  Defendants'  rates  on  flour  and  other  grain  prod- 

ucts from  mills  in  Southern  Illinois  to  the  Atlantic 
Seaboard  found  not  unreasonable  in  themselves,  nor 
violative  of  the  fourth  section,  nor  unduly  discrimina- 
tory against  such  mills  in  favor  of  mills  at  St.  Louis ; 
but  defendants  should  permit  milling  in  transit  on 
grain  upon  all  lines  by  which  this  traffic  can  move 
from  St.  Louis  to  eastern  destination,  at  a  penalty 
not  exceeding  one-half  cent  per  100  lbs. 

Southern   Illinois    Millers    Assn.    vs.    Louisville 

d  Nashville  R.  R.  Co.  et  al,  23  I.  C.  C.  Rep., 

672  (1912). 


—77- 


EXPORT   RATE  ON   GRAIN   COMPARED  TO   EXPORT  RATE  ON 
FLOUR  MILLED  IN  TRANSIT. 

111.  Complaiuant,  whose  mill  is  located  in  the  City  of 

New  York,  is  not  entitled  to  the  export  rate  upon 
grain  from  the  west  which  it  grinds  into  export  flour; 
but  it  is  entitled  to  the  same  rate  upon  the  grain 
which  it  subsequently  grinds  into  export  flour  that 
defendants  accord  to  interior  mills  upon  export  flour. 

It  appears  that  while  ex-lake  grain  from  Buffalo 
to  New  York  enjoys  no  milling  in  transit  privilege, 
export  flour  from  ex-lake  grain  at  Buffalo  takes  an 
export  rate  II/2C  lower  than  the  domestic  rate,  and  it 
seems  that  complainant  should  be  entitled  upon  ex- 
lake  grain  ground  for  export  to  the  benefit  of  this  ex- 
port flour  rate. 

Hecker- Jones- Jeicell  Milling  Co.  vs.  B.  &  0.  R. 
R.  Co.  et  ah,  14  I.  C.  C.  Rep.,  356  (1908),  af- 
firmed 168  Fed.  Rep.,  131. 


ALLOWANCE  OF  PRIVILEGE  MUST  BE  WITHOUT  UNJUST  DIS- 
CRIMINATION. 

112.  Allowance  by  carrier  to  shippers  in  one  territory 

of  the  privilege  of  milling  grain  in  transit  must  be 
without  wrongful  prejudice  to  the  rights  of  shippers 
in  another  territory  served  by  the  same  line. 

Koch  vs.  P.  R.  R.  et  al,  10  I.  C.  C.  Rep.,  675 
(1905). 


-7S— 


113.  Although  a  carrier  is  under  no  h^gal  obligation 
to  stop  a  commodity  in  transit  for  the  purpose  of 
treatment  or  reconsignment,  where  it  grants  such  priv- 
ilege it  must  not  discriminate  between  markets. 

St.  Louis  Hay  d  Grain  Co.  vs.  M.  tt  0.  Rwy.  Co. 
et  ah,  11  I.  C.  C.  Rep.,  90  (1905). 

114.  Defendants  granted  elevator  allowances  of  free 
service  in  transferring,  cleaning,  mixing,  clipping  and 
other  handling  of  grain  at  Kansas  City,  Mo.,  Kansas 
City,  Argentine,  Leavenworth  and  Coffey ville,  Kas., 
but  refused  to  perform  like  services  or  make  like  al- 
lowances to  elevators  and  shippers  at  Atchinson,  Kas. 
Defendants  had  placed  Atchinson  on  a  parity  Avith 
Kansas  City  and  other  points  named  as  to  inbound 
and  outbound  rates,  and  had  made  it,  for  all  rate- 
making  purposes,  a  "common  point",  with  Kansas 
City  and  such  other  points.  Held,  That  as  defend- 
ants had  voluntarily  nmde  Kansas  City,  Mo.,  Atchin- 
son, Kansas  City,  Argentine,  and  Leavenworth,  Kas., 
common  points  as  to  rate  making,  they  could  not  un- 
justly discriminate  as  between  them  to  the  disadvant- 
age of  Atchinson ;  that  any  elevator  allowance  or  free 
service  made  in  connection  with  the  elevation,  trans- 
ferring, mixing,  cleaning,  clipping,  drying,  weighing, 
storage,  loading  out  or  shipment  of  grain  at  Kansas 
City,  Mo.,  Kansas  City,  Leavenworth,  or  Argentine, 
Kas.,  should  also  be  furnished  at  the  same  time  and  to 
the  same  degree  and  extent  at  Atchinson. 

City  Council  of  Atchinson,  Kas.  vs.  Mo.  P.  Rwy. 
Co.  et  al.,  12  I.  C.  C.  Rep.,  Ill ;  petition  for 
rehearing  denied.  12  I.  C.  C.  Rep.,  254 
(1907). 


—79— 


DISCRIMINATION   MAY  BE  JUSTIFIED   BY   COMPETITION. 

115.  Grain  stopped  in  transit  at  Wichita,  Kas.,  was 

permitted  to  be  sent  out  on  the  balance  of  a  through 
rate,  provided  it  was  forwarded  by  the  line  bringing 
it  in.  Grain  stopped  in  transit  at  Kansas  City  was 
permitted  to  be  sent  out  on  a  proportional  rate  by 
any  line  from  that  point.  Held,  That  if  the  privilege 
in  favor  of  Kansas  City  was  voluntarily  allowed,  the 
same  should  be  extended  to  Wichita;  but  that  if  the 
privilege  was  forced  by  competition,  the  carriers  were 
not  obliged  to  establish  the  same  privilege  at  Wichita. 
Mayor,  etc.  of  Wichita  vs.  A.  T.  cG  S.  F.  Rwy.  Co. 
et  al.,  9  I.  C.  C.  Rep.,  534  (1903). 


-81— 


XII.     DOING  BUSINESS  UNDER  OPEN  RATES. 


AS  DISTINGUISHED  FROM  MILLING  IN  TRANSIT. 

IIG.  Where  a  business  like  the  milling  industry  is  con- 

ducted under  local  rates  on  wheat  to  the  mill  point, 
and  local  or  through  rates  on  the  product  from  that 
city,  this  is  doing  business  under  open  rates  or,  as  the 
term  is  sometimes  employed,  in  the  "open  market"  as 
distinguished  from  milling  in  transit  under  the  through 
rate  from  point  of  origin  of  the  wheat  to  ultimate  des- 
tination of  the  product  plus  an  arbitrary  which  is 
added  for  the  privilege. 

About  1890  the  practice  of  milling  grain  in  tran- 
sit at  Minneapolis  was  abandoned  and  from  that  time 
the  milling  industry  has  been  carried  on  under  local 
rates  on  wheat  to,  and  local  or  through  rates  on  the 
product  from  that  city.  This  is  doing  business  under 
open  rates,  or  in  the  open  market,  as  distinguished 
from  milling  in  transit  under  the  through  wheat  rate 
to  which  an  arbitrary  is  usually  added  for  the  priv- 
ilege. 

Listman  Mill  Co.  vs.  C.  M.  cG  St.  P.  Ricy.  Co.,  8  I. 
0.  C.  Rep.,  47  (1898). 

RELATION  OF  MILLING  IN  TRANSIT  RATES  AT  ONE  POINT  TO 
OPEN  RATES  ESTABLISHED  AT  RIVAL  POINT. 

117.  Through  rates  on  wheat  from  points  on  defendant's 

line  west  of  Minneapolis  via  Minneapolis  to  Milwau- 


—82— 

kee  or  Chicago  were  usually  2I/2C  per  100  lbs.  below 
the  sum  of  the  corresponding  in  and  out  rates  at  Min- 
neapolis, such  in  and  out  rates  being  applied  when  the 
wheat  was  milled  in  transit  at  that  point.  Wheat 
shipped  from  points  on  defendant's  line  west  of  La 
Crosse,  Wis.,  and  milled  at  that  point,  the  product 
being  shipped  to  Milwaukee  or  Chicago,  was  not  car- 
ried under  the  system  of  open  rates  prevailing  at  Min- 
neapolis, but  under  the  through  wheat  rate  from  point 
of  origin  via  La  Crosse  to  destination,  a  milling  in 
transit  penalty  being  imposed  of  2i/^c  above  the 
through  rate.  The  transit  rates  given  La  Crosse  bore 
the  same  relation  to  the  through  wheat  rates  via  that 
point  that  the  in  and  out  rates  at  Minneapolis  bore  to 
the  through  rates  via  Minneapolis.  Transit  rates  at 
La  Crosse  were  intended  to  place  millers  in  that  city 
upon  a  footing  of  relative  equality  with  rivals  at  Min- 
neapolis. Held,  That  neither  the  milling  in  transit 
rates  given  La  Crosse,  nor  the  relations  of  those  rates 
with  the  rates  established  for  Minneapolis,  resulted  in 
undue  prejudice  to  La  Crosse. 

Ihid. 


—83- 


XIII.     RECONSIGNIKG. 

RECONSIGNIXG    TO    SECURE    BENEFIT    OF    THROUGH    RATE 
LOWER  THAN  COMBINATION. 

118.  Usually  the  combination  of  local  rates  is  higher 

than  the  through  rate?  Frequentlj^  a  shipper  desires 
to  forward  a  shipment  to  a  certain  point,  and  have 
the  privilege  of  changing  the  destination  or  consignee 
while  the  shipment  is  in  transit,  or  after  it  arrives 
at  the  destination  to  which  originally  consigned,  and 
to  forward  it  under  the  through  rate  from  the  point 
of  origin  to  the  final  destination.  Most  carriers  grant 
such  privilege  and  generally  make  a  charge  therefor. 

Rule  7Jf  Tariff  Circular  18-A  also  Rule  72  Confer- 
ence Ruling  Bulletin  No.  5. 


RECONSIGNING  TO  TEST  THE  MARKET. 

119 .  This  method  is  also  used  very  frequently  by  ship- 

pers at  the  present  time  to  "test  the  market"  at  a  par- 
ticular point. 

In  the  ordinary  acceptation  of  the  term,  a  recon- 
signment  refers  to  a  change  in  destination,  accom- 
panied or  not  by  a  change  in  the  name  of  the  con- 
signee, rather  than  to  a  mere  change  in  the  name  of 
the  consignee;  but  the  latter  change  is  recognized  by 


-84— 


the  Coiuniission  as  a.  reconsi2;nment  and  the  railroads 
are  therefore  justified  in  putting  that  interpretation 
upon  their  tariffs. 

Beekman  Lumber  Co.  vs.  K.  C.  So.  Rwy.  Co.,  17 
I.  C.  C.  Rep.,  86  (1909). 

RECONSIGXING  IS  A  PRIVILEGE  NOT  A  RIGHT. 

120.  The  Commission  has  always  regarded  reconsign- 
ment  as  a  privilege,  not  a  right  to  be  demanded  by  ship- 
pers, and  has  consistently  refused  to  extend  same  ex- 
cept to  correct  unjust  discrimination. 

Cedar  Hill  C.  d  C.  Co.  et  al.  vs.  C.  d-  S.  Rwy.  Co. 
et  al,  16  I.  C.  C.  Rep.,  387  (1909). 

RECOXSIGNING  INCLUDES  CHANGES  IN  DESTINATION,  ROUT- 
ING OR  CONSIGNEE. 

121 .  For  a  while  some  carriers  did  not  consider  change 
of  consignee  which  did  not  involve  a  change  of  desti- 
nation as  a  reconsig-nment,  while  others  did  consider 
it  a  reconsignment  and  charged  for  it  as  such.  This 
naturally  led  to  confusion  and  misunderstanding  in 
the  application  of  that  term  and  in  the  assessment  of 
the  charge  for  such  service.  The  Commission  finally 
ruled  that  without  specific  qualifications  the  term  re- 
consignment  includes  changes  in  destination,  routing 
or  consignee;  that  if  a  carrier  wishes  to  distinguish 
between  such  changes  in  its  privileges  or  charges  it 
must  so  specify  in  its  tariff  rules. 

Rule  77/  Tariff  Circular  18- A  Supra,  also  Rule  72 
Conference  Ruling  Bulletin  No.  5. 


—85— 

RECONSIGNMENT   ON    SHIPPER'S   ORDER   OF   PART   LOTS   OF 
CONSIGNMENTS  OF  GOODS  HELD  IN  STORAGE. 

122 .  The  distribution  and  reconsignment  of  part  lots 

of  goods  held  in  store  by  the  carrier  is  of  considerable 
importance  and  value  to  shippers  and  especially  so  to 
the  class  of  manufacture  or  dealers  largely  engaged  in 
supplying  those  staple  commodities  which  are  com- 
mon demand  throughout  the  country.  To  the  extent 
of  its  value,  each  privilege  lessens  the  aggregate  com- 
pensation paid  by  shippers  to  carriers  for  transpor- 
tation and  terminal  services. 

The  function  of  the  carrier  is  to  receive,  transport 
and  deliver.  As  a  rule,  it  can  only  be  forced  into  the 
position  of  warehouseman  through  lack  of  diligence 
on  the  part  of  the  consignee  in  the  removal  of  his 
property.  With  no  general  duty  to  act  as  a  ware- 
houseman for  indefinite  periods  in  connection  with 
its  primary  obligations  as  a  common  carrier,  it  cannot 
assume  to  provide  shippers  with  valuable  warehouse 
facilities  which  are  not  essential  to  its  business  as  a 
carrier,  without  furnishing  them  for  all  shippers  at 
all  times  and  upon  the  same  terms  and  notifying  the 
public  thereof  in  the  manner  provided  by  law.  Dis- 
tributing consignments  held  in  store,  suspending  col- 
lection charges  for  use  of  cars  beyond  specific  reason- 
able periods  of  time  after  such  cars  have  been  placed 
for  loading  or  unloading  by  shippers  or  consignees, 
and  all  kindred  concessions,  come  within  the  same  re- 
quirements of  impartiality  and  publication. 

American  Warehouseman  Assn.  us.  III.  Central 
R.  R.  Co.,  7  I.  C.  C.  Rep.,  556  (1S98). 


—86— 

CARRIER  LIABLE  UPON  REFUSAL  TO  RECONSIGN  ACCORDING 
TO  PUBLISHED  RULES. 

123.  Upon  the  facts  disclosed  by, the  record  complain- 
ant is  entitled  to  reparation  because  defendants  neg- 
ligently failed  to  comply  with  complainant's  request 
for  reconsignment  of  one  carload  of  hay. 

Hanley  Milling  Company  vs.  Pennsylvania  Com- 
pany et  al,  19  I.  C.  C.  Rep.,  475  (1910). 

RECONSIGNMENT  RATE  HIGHER  THAN  THE  PROPORTION  OF 
THE  THROUGH   RATE. 

124.  It  was  shown  that  the  service  of  the  defendants 
in  handling  reconsigned  hay  at  and  from  East  St. 
Louis  was  more  expensive  as  a  general  rule,  if  not 
invariable,  than  the  service  performed  in  case  of  ship- 
ments through  East  St.  Louis,  while  the  privilege  of 
reconsigning  hay  from  that  point  at  a  charge  less 
than  ,the  established  local  rate  was  of  substantial 
value  to  dealers  in  that  city.  The  Commission  Ileld, 
That  the  fact  that  through  rates  were  less  than  the 
sum  of  the  local  in  and  |  out  rates  was  not  of  itself 
a  valid  ground  of  objection,  nor  was  it  unlawful  for 
the  defendants  to  maintain  reconsignment  rates  which 
were  higher  in  ,  some  cases  than  their  proportion  of 
through  rate;  that  the  fact  that  the  reconsignment 
rate  is  sometimes  the  same  as  the  proportion  of  the 
through  rates  does  not  warrant  an  inference  of  illegal 
conduct  or  support  a  charge  of  unjust  discrimina- 
tion. 

St.  Louis  Hay  &  firain  Co.  vs.  III.  Central  R.  R. 
Co.  et  al.  11  I.  C.  C.  Rep.,  486  (1905). 


-87— 


RESHIPPING  RATE  FROM   PRIMARY  GRAIN   MARKET. 

125 .  May  a  carrier  cancel  its  local  reconsigning,  propor- 

tional and  other  j rates,  on  outbound  shipments  of 
grain  from  a  primary  market  like  Kansas  City,  Mo., 
where  no  grain  originates  upon  which  the  local  rate 
would  be  applicable  on  all  outbound  grain?  Kespond- 
ing  to  the  inquiry  the  Commission  approved  the  sug- 
gestion, but  declined  in  advance  to  express  approval 
of  such  reshipping  rate  when  it  makes  less  than  the 
published  rate  from  an  intermediate  point. 
Ibid. 


CAN  NOT  ENFORCE  DEMURRAGE  ENROUTE  WHILE  PARLEY- 
ING WITH   CONNECTIONS. 

126 .  Where  a  carrier  provides  in  its  tariff  for  reconsign- 

ment  without  any  requirement  for  ^  prepayment  of 
freight  or  guaranty  of  the  same  it  may  not  lawfully 
charge  demurrage  for  time  during  which  it  holds  the 
shipment  while  |  parleying  with  its  connections  as  to 
advancement  of  its  freight  charges. 

Beekman  Lumber  Company  vs.  St.  Louis  South- 
western Railway  Company  et  al.,  14  I.  C.  C. 
Rep.,  532  (1908). 


-89— 


XIV.     RATE   TO    BE   APPLIED   OX    RESHIPPED    COM- 
MODITY. 

THROUGH  RATE  PLUS  CHARGE  FOR  PRIVILEGE. 

127.  An   arbitrary   sum    exacted   in    addition   to   the 

through  rate  on  a  given  commodity  for  the  privilege 
of  milling  the  commodity  in  transit,  becomes  a  part  of 
the  aggregate  through  rate. 

Listman  Mill  Co.  vs.  Chicago  M.  d  St.  P.  Rwy. 
Co.,et  al.,  8  I.  C.  C.  Rep.,  47  (1898). 


CHANGES  IN  RATES  DO  NOT  AFFECT  SHIPMENT  IN  COURSE  OF 
TRANSPORTATION. 

128 .  Rates  frequently  change  while  commodities  are  in  a 

state  of  suspended  transportation  at  the  transit  point. 
In  such, case  it  is  necessary  to  determine  whether  or 
not  the  rate  to  be  applied  shall  be  that  of  the  day 
of  final  shipment  or  that  of  the  day  of  shipment  from 
the  (first  point  of  origin.  The  Commission  has  held 
that  the  through  rates  to  be  charged  for  the  transporta- 
tion are  the  rates  in  effect  at  the  time  the  shipment  is 
first  delivered  to  ,the  carrier.  Changes  in  rates  do 
not  affect  shipments  which  are  in  course  of  transporta- 
tion. Shippers  delivering  commodities  to  carriers  are 
not  subject  to  change  of  rates  by  the  carriers  after 


-90— 


the  carriers  take  possession  of  the  shipments  and  issue 

bills  of  lading. 

In  re  Milling  in  Transit  Rates,  17  I.  C.  C.  Eep.,  113 
(1909).  See  also  In  the  Matter  of  Through 
Routes  and  Through  Rates,  12  I.  C.  C.  Kep., 
1(»3  (1907),  and  Rule  119,  Con.  Eul.  BuL, 
No.;  5. 

THROUGH  RATE  IN  EFFECT  AT  TIME  SHIPMENT  MOVED. 

129 .  The  Commission  is  unable  to  accept  or  countenance 

the  theory  of  suspended  transportation,  with  its  result 
of  the  application  of  the  through  rate  for  commodi- 
ties which  have  been  milled  or  merchandised,  without 
applying  to  the  situation  thus  created  the  rule  of  law 
that  rates  cannot  be  changed  while  shipments  are  in 
course  of  transportation.  The  Commission  cannot 
say  that  shipments  are  theoretically  in  course  of  trans- 
portation in  order  that  the  through  rate  may  be  ap- 
plied, and  actually  not  in  course  of  transportation  in 
order  that  changed  rates  may  be  applied. 

The  Commission  adheres  to  its  former  ruling  that 
whenever  by  any  transit  arrangement  through  rates 
are  applied,  such  through  rates  must  be  as  of  the  date 
of  the  first  movement  of  the  shipment  from  the  point 
of  origin  under  such  through  rates. 

17  I.  C.  0.  Rep.,  113  (1909),  Supra. 


-91— 


TARIFF  RULE  PROVIDING  RATE  APPLICABLE  FROM  RESHIPPING. 
POINT   NOT   SANCTIONED. 

130.  Upon  inquiry  whether  a  proposed  tariff  rule  pro- 

viding that  "The  rate  to  be  applied  on  all  outbound 
transit  grain  of  record  shall  be  the  specific  rate  that 
is  lawfully  in  effect  from  Chicago  at  the  time  the  grain 
is  reshipped"  may  lawfully  be  incorporated  in  a  tariff; 
Held,  That  the  Commission  can  not  sanction  the  rule, 
and  that  the  grain  can  move  only  as  a  through  move- 
ment on  the  through  rate  in  effect  at  the  time  it  starts, 
or  at  a  local  movement. 

Conference  Ruling  Bulletin  No.  5,  Rule  119,  In 
Re-Mlllinr/  in  'Transit  Rates,  17  I.  C.  C.  Rep., 
113   (1909). 


RATE     APPLIED     ON     SHIPMENTS     REFUSED     BY     CONSIGNEES 
OR  DAMAGED  IN  TRANSIT. 

131 .  In  one  form  or  another  many  carriers  provide  for 

the  return  free  or  at  reduced  rates,  or  the  reconsign- 
ment  under  the  through  rate  from  point  of  origin,  of 
shipments  that  are  damaged  in  transit  or  are  refused 
by  consignees.  In  answer  to  request  for  a  ruling  the 
Commission  expressed  the  opinion  that  in  a  non- 
discriminatory way  and  within  reasonable  limits  such 
rule  is  not  unlawful  or  improper.  Care  should  be 
taken  to  preserve  the  distinction  between  shipments 
in  which  the  carrier  has  no  interest,  except  the  col- 
lection of  the  transportation  charges,  and  which  are 
reconsigned  or  returned  purely  out  of  consideration 


—92— 

for  the  interests  of  the  owner  of  the  shipment,  and 
shipments  which  because  of  injury  or  damage  in  tran- 
sit, are  left  on  the  carrier's  hands  and  in  which  it  has 
an  interest  to  the  extent  of  the  transportation  charges 
and  the  value  of  the  shipment. 
Rule  61,  Tariff  Circular  18-A. 

132 .  It  appears  that  in  some  instances  carriers  are  will- 
ing to  reconsign  refused  shipments  to  points  beyond 
the  first  destination  and  to  apply  the  tariff  rate  from 
point  of  origin  to  final  destination,  even  though  it  be 
lower  than  the  rate  to  first  destination,  but  they  do 
not  feel  at  liberty  to  do  so  in  view  of  paragraph  2 
of  Rule  78,  Tariff  Circular  15-a. 

It  is  optional  with  the  carrier 'whether  or  not  it 
will  grant  reconsigning  privilege.  If  granted,  the  con- 
ditions governing  it  must  be  in  tariff,  and  if  charges 
for  back  'haul  or  out  of  line  haul  are  to  be  assessed, 
rule  must  so  state. 

It  is  of  course  understood  that  satisfactory  show- 
ing of  genuine  transaction  and  actual  refusal  by  con- 
signee will  be  required.  (Rule  78,  Tariff  Circular 
15-A,  amended  accordingly;  now  published  as  Rule  67 
of  Tariff  Circular  18-A.) 

Conference  Ruling  Bulletin  No.  5,  Rule  11J{. 

133.  A  I'ule  providing  that  shipments  which  are  refused 
by  consignee  may  be  reconsigned  and  forwarded,  under 
application  of  through  rate  from  'the  point  of  origin 
to  final  destination,  either  with  or  without  the  exac- 
tion of  a  reconsignment  charge,  is  permissible.    Where 


—93— 

the  tariff  provides  for  the  return  of  shipments  at  re- 
duced rates  the  tariff  rule  must  be  strictly  complied 
with.  Such  tariff'  rule  should  provide  that  the  way- 
bill covering  the  return  'movement  and  shipping  re- 
ceipt must  show  reference  to  the  original  outbound 
shipment  and  waybill. 

Rule  67,  Tariff  Circular  18-A. 

134.  A  rule  providing  for  the  reconsignment  and  re- 

turn free  or  at  ^reduced  rates  of  articles  damaged  in 
transit  is  not  improper  if  it  is  so  framed  and  applied 
as  to  prevent  abuses  or  improper  practices  under  it. 
The  practice  of  returning  at  reduced  rates  articles 
that  have  been  delivered  into  the  possession  of  con- 
signees and  have  become  shop  worn  or  have  gotten  into 
a  state  of  disrepair  through  use,  is  neither  proper 
nor  free  from  unjust  discrimination.  A  rule  accord- 
ing to  reduced  rates  or  return  shipments  is  proper 
only  in  so  far  as  it  applies  to  the  return  shipments 
that  are  received  by  the  consignee  in  bad  order  or 
are  refused  by  the  consignee  without  examination. 

As  to  shipments  that  are  not  in  closed  packages 
and  thus  are  open  to  immediate  inspection,  the  rule 
should  provide  that  in  order  to  secure  rates  on  the 
return  movement  the  goods  shall  not  have  left  the 
possession  of  the  carrier  before  such  claim  is  made. 
As  to  goods  that  are  in  closed  packages,  the  rule 
should  provide  that  in  order  to  secure  reduced  rates 
on  return  movement  such  goods  must  be  returned  to 
the  carrier  within  ten  days. 

Ibid. 


—94— 


RATES  MUST  BE  APPLIED  OxNLY  VIA  THE  ROUTE  OVER  WHICH 
SHIPMENT   MOVED. 

135.  The  foregoinj?  rules  must  be  in  tariffs  and  must 

be  applied  without  discrimination  and  should  provide 
that  the  rule  for  the  return  of  shipments  applies  only 
via  the  route  and  line  over  which  the  shipment  moved. 
Uniformity  among  carriers  in  rules  and  practices 
in  such  matters  as  these  is  desirable  and  contributes 
to  thorough  understanding  and  harmony  between  car- 
riers and  shippers. 
Ibid. 


CARRIER   LIABLE   FOR   OVERCHARGE   DUE   TO    MISROUTING   OF 
TRANSIT  SHIPMENT. 

136.  As  the  agent  of  an  intermediate  carrier  has  no 

means  of  knowing  just  why  a  shipment  has  been 
routed  through  particular  Junctions,  he  has  no  right 
to  substitute  his  own  judgment  as  to  routing  for  the 
specific  routing  instructions  accompanying  the  ship- 
ment. In  a  stated  case  the  initial  carrier  issued  bills 
of  lading  showing  particular  routing  but  no  rate ;  the 
transfer  billing  subsequently  issued  to  a  connecting 
line  showed  the  routing  and  a  10  cent  division  of  a 
33  cent  rate  that  did  not  apply  through  the  junctions 
named  but  through  another  junction;  and  the  agent 
of  the  connection  therefore  diverted  the  shipment 
through  the  latter  junction  to  destination.  It  subse- 
quently appeared  that  because  of  the  diversion  the 
shipper  had  lost  a  transit  right  at  a  given  point  on 


—95— 

the  route  specified,  which  was  necessary  to  effect  the 
sale  to  the  shipment  at  destination:  Held,  That  as 
tariffs  are  permitted  to  contain  rules  providing  that 
they  are  subject  to  the  transit  privileges  shown  on 
the  tariffs  of  individual  carriers  on  file  with  the  Com- 
mission, the  intermediate  line  was  responsible  to  the 
shipper  for  the  difference  between  the  rate  paid  in 
order  to  get  the  shipment  back  to  the  transit  point  and 
the  legal  rate  over  the  route  directed  by  the  shipper. 

(See  Rule  21  Jf)  Conference  Rulings^  Bulletin  No. 
5,  Rule  230  (1909). 


RECONSIGNMENT     RATES     OPTIONAL     WITH     CARRIER     UN- 
LAWFUL. 

137.  Eeconsignment  rules  required  to  be  signed  by  the 

shipper  and  subject  to  cancellation  at  the  option  of 
the  carrier  are  inconsistent  with  the  law  governing 
the  establishment  and  modification  of  tariff  schedules. 

Kile  (C-  Morgan  vs.  Deepwafer  Ricy.  Co.  et  ah,  15 
I.  C.  C.  Eep.,  235  (1909). 


SHIPMENT  THAT  MOVED  IN  UNDER  A  FORMER  TARIFF  DOES 
NOT  LOSE  THE  BENEFIT  OF  THROUGH  TRANSIT  RATE 
CANCELLED  PENDING  THE  OUT  MOVEMENT. 

138 .  A  tariff  enabled  shippers  to  concentrate  commodi- 

ties on  local  rates  at  a  certain  point  for  shipment 
v»'ithin  n  named  period  in  carload  lots,  the  inbound 
billing  to  be  surrendered,  and  through  rates  from 
point  of  original  shipment  to  apply.    Before  the  period 


—96— 

of  taking  advantage  of  this  privilege  had  expired  a 
new  tariff  made  a  new  arrangement.  Ileld^  That  with 
respect  to  shipments  that  had  moved  to  the  concen- 
trating point  under  the  old  tariff  and  which  moved 
out  within  the  period  allowed,  the  old  rate  should 
apply. 

Rule  80,  Con.  Rul.,  Bui.  No.  5  {1908). 

139 .  Where  a  shipment  over  a  through  route  is  stopped 

at  an  intermediate  point  under  some  tariff  privilege, 
the  local  or  proportional  rate,  "in"  cannot  be  absorbed, 
diminished  or  affected  by  any  "out"  rate  not  in  effect 
at  the  time  when  the  traffic  moved  upon  such  local  or 
proportional  rate. 

Re  Through  Routes  and  Through  Rates,  12  I.  0. 
C.  Rep.,  163  (1907). 


THROUGH  TRANSIT  RATE  NOT  AVAILED  OF  CANNOT  BE 
RENEWED  AFTER  THE  EXPIRATION  OF  THE  TIME 
ALLOWED  IN  THE  TARIFFS. 

140 .  A  consignor  of  sheep,  which  were  being  grazed  in 

transit,  was  unable  because  of  a  severe  snow-storm,  to 
get  the  sheep  to  the  station  before  the  grazing  privi- 
lege expired  according  to  the  published  time  limit. 
Upon  inquiry  of  the  carrier  it  was  held  that  it  can- 
not lawfully  take  the  sheep  forward  on  the  rates 
which  would  have  been  applicable  under  the  tariff 
had  the  sheep  been  shipped  within  the  time  limit. 

Rule  53  Con.  Rul,  Bui  No.  5  {1908). 


—97— 

STRICT    COMPLIANCE    WITH    RULES    NECESSARY    TO    USE    OF 
PRIVILEGE. 

141.  In  making  shipments  of  structural  iron  and  steel 
the  consignor  intended  to  take  advantage  of  the  priv- 
ilege of  fabricating  the  material  in  transit,  but  failed 
to  note  on  the  bill  of  lading  as  required  by  the  tariff, 

"To  be  fabricated  at  "    As  a  result  of  this 

omission  higher  charges  accrued.  Held,  That  the  Com- 
mission will  not  authorize  the  carrier  to  refund  the 
additional  charges  resulting  from  the  shipper's  own 
error. 

Rule  3Jf8,  Con.  Rul.,  Bui.  No.  5  {1912). 

NEW  POLICING  RULES  APPLY  TO  ALL  TONNAGE— INCLUDING 
THAT  MOVED  IN  PREVIOUS  TO  PUBLICATION. 

142.  Some  question  has  arisen  as  to  effect  of  the  order 
upon  tonnage  that  had  begun  to  move  prior  to  August 
15,  1912.  The  Commission's  order  related  only  to 
policing,  and  in  that  respect  effected  all  tonnage  upon 
which  transit  privileges  were  or  are  claimed  on  or 
after  August  15th.  The  rate  in  effect  at  the  time 
the  shipments  began  to  move  is  the  rate  lawfully 
applicable.  In  case  a  privilege  had  been  enjoyed  prior 
to  the  date  of  the  order,  a  tariff  cancelling  such  priv- 
ilege does  not  effect  tonnage  that  began  to  niovi?  prior 
to  the  cancellation  but  such  tonnage  is  subje•^*^  li»  the 
policing  requirements.  Interstate  Remedy  Co.  vs. 
American  Express  Co.,  16  I.  C.  C.  Rep.,  436  (1909). 

Supplemental  Report  in  Transit  Case,  25  I.  C.  C. 
Rep.,  130  (1912). 


-OS- 


THROUGH  TRANSIT  RATE  WILL  NOT  BE  GIVEN  A  RETROAC- 
TIVE EFFECT. 

143.  A  sliipment  consigned  to  one  point  was  recon- 
signed  en  route  to  another,  the  tariff  containing  no 
reconsignment  privilege.  As  a  consequence  local  rate:? 
to  and  from  the  reconsigning  point  were  applied  and 
made  higher  than  the  through  rate.  Held,  Under  sub- 
sequent tariff  that  did  not  reduce  rate,  but  incorpor- 
ated a  reconsignment  privilege,  that  the  benefit  of 
such  privilege  could  not  be  applied  retroactively  to  a 
previous  shipment  and  cannot  be  accepted  as  the  basis 
for  a  refund  on  special  reparation  docket. 

Rule  6,  Con.  Rul,  Bui  No.  5  {1907)  ;  Rule  166, 
Con.  Rul,  Bui.  No.  5  {1909). 

144.  The  above  rule  is  held  to  include  cleaning,  mill- 
ing, concentration,  and  other  transit  privileges. 

Rule  11,  Con.  Rul.,  Bui.  No.  5  {1908). 

145.  Complainant  alleged  that  defendants  charge  of 
|3  per  car  for  the  privilege  of  reconsigning  shipments 
of  hay  at  Cairo,  111.,  was  unreasonable;  but  subse- 
quently defendant  abrogated  such  reconsignment 
charge  at  Cairo,  thus  removing  the  original  cause  of 
complaint. 

At  the  hearing,  claim  for  reparation  was  urged 
on  account  of  shipments  made  while  the  reconsign- 
ment rule  was  in  effect;  but  upon  the  facts  disclosed 


—99—  

in  the  record,  the  claim  is  disallowed  and  the  com- 
plaint dismissed. 

T.  M.  Kehoe  cG  Company  vs.  Illinois  Central  Rail- 
road Company,  14  I.  C.  C.  Rep.,  541  (1908). 

146.  The  Commission  has  consistently  held  in  the  past 
that  it  conld  not  with  propriety  make  a  reconsignment 
privilege  retroactive  in  practical  effect  by  ordering 
reparation  on  a  shipment  made  at  a  time  when  the 
same  was  not  available,  the  basis  of  such  reparation 
being  the  non-availability  of  such  privileges  at  the 
time  shipments  moved  and  the  subsequent  publication 
of  the  same.  It  seems  clear  that  the  privilege  as  pub- 
lished in  tariffs  in  effect  at  the  time  the  shipment  in 
question  moved  was  not  applicable  thereon  because 
of  one  of  the  essential  conditions  under  which  that 
privilege  was  to  be  had,  to  wit,  that  the  reconsign- 
ments  should  be  accomplished  within  72  hours  after 
arrival  of  the  shipment  at  first  destination,  was  not 
met. 

Sunnyside  Coal  Mining  Co.  vs.  D.  cG  R.  G.  R.  R. 
Co.  et  al.,  16  I.  C.  C.  Rep.,  558  (1909). 

147 .  Bulletin  No.  4  Provides : 

Adhering  to  Rule  6  the  Commission  will  not  sanc- 
tion the  application  retroactively  of  a  reconsigning 
privilege  even  though  it  had  long  been  the  custom  of 
the  carrier  to  permit  reconsignment  without  tariff 
authority. 

This  principle  has  been  applied  in  numerous  cases : 
Shiel  d  Co.  vs.  I.  C.  R.  R.  Co.,  12  I.  C.  C.  Rep.,  210 ; 


—100— 

Kansas  CiUj  Hay  Co.  vs.  St.  L.  cG  S.  F.  R.  R.  Co., 

14  I.  C.  C.  Rep.,  631;  Folmer  cG  Co.  vs.  Gt.  N.  Rwy. 

15  I.  C.  C.  Rep.,  33;  Kill  d  Morgan  vs.  Deep- 
water  Ricy.  Co.,  15  I.  C.  C.  Rep.,  235 ;  National  Lumber 
Co.  vs.  8.  P.  L.  A.  cG  ;S'.  L.  R.  R.  Co.,  15  I.  C.  C.  Rep., 
434  (1909)  ;  Sunnyside  Coal  Mining  Co.  vs.  D.  d  R.  G. 
R.  R.  Co.,  16  I.  C.  C.  Rep.,  558;  and  Acme  Cement 
Plaster  Co.  vs.  C.  &  A.  R.  R.  Co.,  17  I.  C.  C.  Rep.,  220. 

H.  F.  Cady  Lumber  Co.  vs.  Missouri  Pacific  Rail- 
icay  Company  et  al.,  19  I.  C.  C.  Rep.,  12 
(1910). 

148 .  Complainants  seek  retroactive  application  of  mill- 
ing in  transit  privilege  on  logs  at  Evansville,  Ind,  The 
outbound  shipments  of  lumber  alleged  to  have  been 
the  product  moved  18  months  after  the  inbound  ship- 
ments :  Held,  That  a  milling  in  transit  privilege  can 
not  reasonably  extend  over  so  long  a  period ;  and,  fur- 
thermore, a  retroactive  application  of  the  privilege 
should  not  be  made. 

Young  d  Cutsinger  vs.  Louisville  &  Nashville 
Railroad  Company,  22  I.  C.  C.  Rep.,  1  (1911). 

149.  Defendant  charged  7.7  cents  per  100  pounds  on 
logs  from  McLean's  Spur,  Ky.,  to  Louisville,  Ky., 
said  to  have  been  shipped  with  the  understanding  that 
refund  would  be  made  to  basis  of  5  cents  upon  proot 
that  the  manufactured  product  had  been  reshipped  via 
defendant's  line.  The  inbound  shipments  moTcd  dur- 
ing period  from  May,  1907,  to  September,  1908,  but 
carrier  failed  to  establish  the  rate  contended  for  until 


—101— 

I 

October,  190S.  All  oiitbonnd  movements  were  made 
subsequently  to  October,  1909 :  Held,  That  the  inter- 
vening period  was  unreasonably  long.  The  Commis- 
sion adheres  to  its  policy  of  refusing  to  authorize 
retroactive  application  of  transit  privileges  unless  for 
the  purpose  of  removing  a  discrimination. 

Wood  Mosaic  Flooring  cC-  Lumber  Company  vs. 

Louisville  &  Nashville  Railroad  Company,  22 

I.  C.  C.  Rep.,  458  (1912). 

150.  Following  previous  decisions,  JJeld,  That  in  the 

absence  of  a  showing  of  unjust  discrimination  a  tran- 
sit privilege  will  not  be  given  retroactive  effect. 

Smith  cG  Co.,  Ltd.,  vs.  Oregon  Short  Line  R.  R. 
Co.  et  al..  Unreported  Opinion,  670  (1912). 
See  also  Deeves  Lumber  Co.  vs.  Alabama  and 
Vicksburg  Railicay  et  al.,  25  I.  C.  C.  Kep.,  42 
(1912). 


RATES    APPLICABLE    WHERE    GOODS    DESTROYED    WHILE    SUS- 
PENDED  IN   TRANSIT. 

151.  Complainant   shipped   125  bales  of  cotton  from 

Lawton,  Okla.,  to  Chickasha,  Okla.,  for  concentration 
and  subsequent  reshipment.  Defendants'  tariffs  pro- 
vided that  on  reshipment  from  the  concentration  point 
the  through  rate  from  point  of  origin  to  final  destina- 
tion would  be  protected.  Consignment  was  destroyed 
by  fire  while  standing  upon  the  platform  of  the  com- 
press at  Chickasha.    Complaint  seeking  refund  of  the 


-102- 


local  charges  collected  for  the  movement  from  Lawtoii 
to  Chickasha  dismissed. 

Anderson,  Clayton  cC-  Company  vs.  St.  Louis  ct 

San  Francisco  Railroad  Company  et  al.,  17 

I.  C.  C.  Rep.,  12  (1909). 

RATES    APPLICABLE   TO    SHIPMENTS    STOPPED    SHORT    OF   IN- 
TENDED DESTINATION. 

152 .  Under  transit  tariffs  requiring  the  payment  of  the 

full  rate  to  final  destination  at  the  time  the  shipment 
is  delivered  at  the  transit  point,  it  sometimes  occurs 
that  a  shipment  is  never  forwarded  to  the  destination 
to  which  charges  have  been  paid :  Held,  That  it  is 
not  unlawful  or  improper  in  such  cases  to  refund  the 
charges  that  have  been  paid  in  excess  of  what  the  law- 
ful charges  on  the  shipment  would  have  been  if  the 
transit  point  had  been  its  final  destination. 

Conference  Rulings,   Bulletin   No.   5,   Rule   350 
{1912  \ 


—103- 


XV.     SUBSTITUTION. 

NECESSITY   FOR   SUBSTITUTION. 

153.  The  Commission   in   considering  the  practice  of 

floating  cotton  does  not  pass  over  the  entire  route, 
but  that  substitution  takes  place  at  the  compress 
point.  This  is  certainly  true.  If  a  carload  of  cotton 
leaves  Hernando  for  Boston,  it  is  quite  probable  that 
no  single  bale  of  that  cotton  ever  goes  to  Boston.  If 
the  car  in  which  it  came  to  Grenada  reaches  that 
destination  it  is  practically  certain  that  it  will  be  filled 
with  other  cotton,  but  is  this  in  any  way  material? 
Every  pound  of  Hernando  cotton  finally  goes  to  some 
point  beyond  Grenada.  It  is  true  that  a  bale  of  cot- 
ton railed  at  Grenada  may  go  from  Grenada  to  Boston, 
by  this  process  of  substitution,  at  the  Hernando  rate, 
but  in  that  event  a  corresponding  amount  of  cotton 
from  Hernando  must  go  to  some  point  upon  the 
Grenada  rate.  However,  it  may  be  in  theory,  there 
can  be  in  fact  no  discrimination.  Grenada  cotton  is 
bought  upon  and  has  the  benefit  of  the  Grenada  rate, 
and  cannot  possibly  obtain  the  benefit  of  any  other 
rate,  and  Hernando  cotton  must  go  to  a  point  beyond 
Grenada  at  some  published  rate. 

Re  Unlawful  Rates  and  Practices  in  Transporta^ 
tion  of  Cotton,  8  I.  C.  C.  Rep.,  121   (1899). 


—104— 

IMPRACTICABLE  TO  REFORWARD  IDENTICAL  CARLOAD  OF 
GRAIN. 

154.  Milling,  storage  or  cleaning  in  transit  privilege 

cannot  be  justified  on  any  theory  except  that  the  iden- 
tical commodity  or  its  exact  equivalent,  or  its  product, 
is  finally  forwarded  from  the  transit  point  under  the 
application  of  the  through  rate  from  original  point 
of  shipment.  It  is,  therefore,  not  permissible  at  tran- 
sit point  to  forward  on  transit  rate  commodity  that 
did  not  move  into  transit  point  on  territory  for  the 
same  or  like  commodity  moving  into  transit  that  would 
impair  the  integrity  of  the  through  rate.  It  is  not 
practicable  to  require  that  the  identity  of  each  car- 
load of  grain,  lumber,  salt,  etc.,  be  preserved,  but 
in  the  opinion  of  the  Commission,  it  is  not  possible  to 
lawfully  substitute  at  the  transit  point  any  commodity 
of  a  different  kind  from  that  which  has  moved  into 
such  transit  point  under  a  transit  rate  or  rule.  That 
is  to  say,  oats  or  the  products  of  oats  may  not  be  sub- 
stituted for  corn,  corn  or  the  products  of  corn  for 
wheat,  nor  wheat  or  the  products  of  wheat  for  barley, 
nor  may  shingles  be  substituted  for  lumber,  nor  lum- 
ber for  shingles,  nor  may  rock  salt  be  substituted  for 
fine  salt,  nor  fine  salt  for  rock  salt ;  likewise  oak  lum- 
ber may  not  be  substituted  for  maple  lumber,  nor  pine 
lumber  for  either  oak  or  maple,  nor  may  hard  wheat, 
soft  wheat,  or  spring  wheat  be  substituted  either  for 
the  other.  These  illustrations  are  given  not  as  cover- 
ing the  entire  field  of  possible  abuses,  but  as  indicating 
the  view  which  the  Commission  will  take  of  such  abuses 
as  they  arise. 


—105— 

To  the  end  that  abuses  now  existing  at  transit 
points  may  be  eliminated,  carriers  will  be  expected  to 
conform  their  transit  rules  and  their  billing  to  the 
suggestions  of  this  rule.  In  the  event  of  the  failure 
of  any  carrier  so  to  do,  reductions  of  legal  rates  caused 
by  transit  abuses  will  be  regulated  as  voluntary  con- 
cessions from  legal  rates.  Rule  16,  Tariff  Cir.  18-A 
{1909)  ;  Rule  203,  Con.  Rul,  Bui.  No.  5. 


TARIFF  RULE  PROVIDING  FOR  EQUIVALENT  TONNAGE,  CEMENT 
OR  PLASTER,  HELD  TO  BE  UNLAWFUL. 

155.  A  shipper  proposed  a  tariff  rule  authorizing  car- 

load shipments  of  lime  originating  at  eastern  points 
to  be  stopped  at  Omaha,  where  a  part  of  the  contents 
could  be  unloaded  and  an  equivalent  tonnage  of  cement 
or  plaster  substituted,  the  charges  to  final  destination 
be  assessed  in  accordance  with  the  rate  on  line  from 
the  original  point  of  origin :  Held,  That  the  proposed 
rule  be  unlawful. 

Rule  181,  Con.  Rul,  Bui  No.  5  (1909). 


RULE  76,  TARIFF  CIRCULAR  17-A,  NOT  TOO  STRICT. 

156.  "The   various   investigations   held   by   the   Com- 

mission in  regard  to  the  matter  of  the  substitution 
at  transit  points  have  failed  to  demonstrate  that  the 
Commission's  Rule  No.  76,  relative  to  substituting 
tonnage  at  transit  point  was  too  strict,  but  they 
have  demonstrated  that  the  various  practices  out- 
lined in  the  report  herein  have  resulted  in  the  viola- 


—106— 

tion  of  the  published  tariff  rates,  to  the  injury  of  ship- 
pers not  taking  advantage  of  such  practices.  Continu- 
ance of  such  abuses  will  compel  the  Commission  to 
resort  to  criminal  prosecutions,  including  both  ship- 
ers  and  carriers,  to  secure  obedience  to  the  law." 

In  the  Matter  of  Suhstitution  of  Tonnage  at  Tran- 
sit Points,  18  I.  C.  C.  Eep.,  280  (1910). 


SUBSTITUTION    AFTER    DISCONTINUANCE    OF    BANKRUPTCY 
PROCEEDINGS. 

157.  When  bankruptcy  proceeding  discontinued  opera- 

tion of  a  milling  plant  that  was  using  a  transit  priv- 
ilege  it  developed  that  there  were  on  hand  large  num- 
bers of  inbound  expense  bills  and  practically  no  cor- 
responding tonnage  of  grain  or  grain  products  entitled 
to  transit  rates:  Held,  That  such  old  expense  bills 
were  worthless  for  reshipping  purposes  in  connection 
with  tonnage  that  moved  into  the  plant  after  complain- 
ant had  resumed  business  at  the  same  plant,  first  as 
lessee  and  later  as  a  corporation:  Held  also,  That 
complainant  is  entitled  to  use  for  transit  purposes  in- 
bound expense  bills  representing  grain  moved  into  the 
plant  subsequent  to  resumption  of  business  under 
lease,  and  to  reparation  on  certain  shipments  in  con- 
nection with  which  confusion  as  to  the  proper  man- 
ner of  surrender  of  expense  bills  was  contributed  to  by 
both  defendant  and  complainant. 

Henry  A.  Klyce  Company  vs.  Illinois  Central 
Railroad  Company  et  al.,  19  I.  C.  C.  Eep., 
567  (1910). 


—107- 


CROSS    BILLING    IS    A    TECHNICAL    DISCRIMINATION    AND    NOT 
UNDUE. 

158.  Grain   might   move   from   the   field    to   the   east 

through  St.  Louis,  for  example,  from  many  points  of 
origin  with  the  right  to  mill  or  elevate  at  St.  Louis. 
Under  this  system  the  grain  paid  a  certain  rate  into 
St.  Louis  and  what  was  known  as  the  balance  of  the 
through  rate  when  it  went  forward.  Since  the  division 
of  this  through  rate  which  was  allowed  to  lines  east 
of  St.  Louis  varied  with  the  point  of  origin,  it  re- 
sulted that  the  balance  of  the  through  rate  differed, 
and  this  presented  opportunity  for  manipulation  of 
billing.  In  a  market  like  St.  Louis,  where  there  is 
a  large  local  consumption  and  where,  therefore,  sur- 
plus billing  to  a  considerable  amount  could  always 
be  had,  it  was  possible  by  the  crossing  of  billing,  by 
selecting  of  the  most  favorable  billing,  and  by  other 
practices,  to  defeat  the  through  rate  so  that  this  sys- 
tem, while  in  theory  entirely  just,  was  in  its  working 
filled  with  iniquity.  To  prevent  discrimination  aris- 
ing from  these  matters  the  Commission  has  long  be- 
lieved that  when  conditions  admit  rates  should  be 
established  from  these  larger  grain  markets  applicable 
to  all  grain  handled  at  and  shipped  from  the  market, 
irrespective  of  its  point  of  origin,  and  the  rates  before 
us  were  established  by  the  carriers  in  that  view. 

While  the  foreging  considerations  which  are  re- 
lied upon  by  the  complainant  do  show  a  technical  dis- 
crimination, tliey  are  not  substantial.  It  is  undoubt- 
edly true  that  in  fact  under  this  system  of  specific 


—108— 

rates  grain  from  some  quarters  actually  pays  a  trans- 
portation charge  less  than  it  should,  while  grain  from 
other  quarters  pays  more  than  it  should,  but  on  the 
whole  no  material  hardship  results  and  we  feel  that 
in  view  of  the  greater  general  good  we  should  hold 
that  these  incidental  discriminations  are  not  undue. 
Southern  Illinois  Millers'  Assn.  vs.  Louisville  d 

Nashville  R.  R.  Co.  et  al.,  23  I.  C.  C.  Rep., 

672   (1912). 


TARIFF   MAY   BE  ADJUSTED  TO   LEGALIZE  NECESSARY   SUB- 
STITUTIONS AND  CROSS  BILLING. 

159.  Probably  the  most  serious  question  raised  by  the 

order  relates  to  what  is  known  as  the  division  of  the 
product  in  the  milling  of  grain.  Certain  mills  have 
been  shipping  out  flour  on  wheat,  pound  for  pound. 
This  necessarily  involves  a  substitution  at  the  mills 
and  the  practice  was  prohibited.  The  individual  re- 
spondents are  now  requiring  the  maintenance  of  the 
proper  ratio  of  product  to  inbound  grain  for  their 
separate  lines  of  railway.  The  Commission  is  asked 
to  modify  its  rule  so  as  to  permit  the  average  ratio 
to  be  maintained  for  the  mill  as  a  whole  instead  of 
each  particular  line.  This  is  to  enable  the  millers  to 
ship  out  their  flour  to  markets  upon  one  line  of  rail- 
road and  their  offal  or  feed  to  points  upon  another 
line.  That,  for  commercial  reasons,  this  is  frequently 
desirable  we  do  not  doubt,  but  in  the  absence  of  proper 
tariff  publication  to  which  all  carriers  participating 
in  the  in  and  out  movement  are  parties,  an  illegal  sub- 


—109— 

stitution  would  result.  Rates  upon  grain  moving 
through  a  transit  point  upon  a  transit  privilege  and 
milled  at  the  transit  point  are  assessed  in  any  one 
of  several  ways.  Some  of  the  carriers  charge  the  local 
rate  to  the  milling  point,  and,  when  the  milled  product 
is  billed  out,  refund  the  local  rate  and  bill  the  product, 
as  such,  from  point  of  origin  of  the  grain  or  rate 
basing  point  to  destination  of  product.  Other  carriers 
reduce  the  locals  originally  collected  to  the  milling 
point  to  a  figure,  which,  added  to  the  rate  charged 
beyond  the  milling  point,  equals  the  through  rate  via 
the  milling  point  from  origin  to  destination.  Again, 
the  carrier  may  bill  the  grain  at  the  local  rate  sub- 
ject to  adjustment  to  the  through  rate  point  or  rate 
basing  point  to  destination  by  claim.  At  many  of 
the  points  there  is  a  supply  of  non-transit  grain  and 
a  disposition  of  non-transit  products.  Where  the 
through  rates  applicable  to  the  various  through  routes 
via  the  transit  point  vary  the  opportunity  for  substi- 
tution is  clearly  apparent.  If,  therefore,  flour  can  be 
shipped  pound  for  pound,  for  wheat  received  by  the 
surrender  of  no  particular  billing,  the  integrity  of 
the  through  rate  is  affected,  and  tonnage  of  flour 
which  would  not  have  been  produced  covered  by  the 
inbound  billing  surrendered  is  substituted.  The  same 
substitution  would  be  present  in  the  case  of  the  by- 
products. If  accounts  ai*e  kept  of  each  kind  and  char- 
acter of  grain  reaching  the  milling  point  via  each  road 
and  care  is  taken  that  the  outbound  shipments  in 
a  given  account  are  made,  either  over  the  road  bring- 
ing the  grain  into  the  milling  point  or  over  a  road 


—no- 
forming  part  of  the  through  route  with  the  inbound 
road,  it  would  not  be  absolutely  necessary  to  preserve 
the  ratio  on  each  individual  car  of  grain  or  as  to 
each  line  of  railroad  passing  through  the  transit 
point.  The  lawful  character  of  the  operation  of  transit 
In  this  connection  is  largely  a  transportation  question 
and  one  that  for  all  practical  purposes  the  carriers 
can  take  care  of  by  so  publishing  their  rates  as  to 
make  lawful  what  would  otherwise  be  clearly  unlaw- 
ful. If  the  carriers  have  permitted  business  to  develop 
at  points  on  their  lines  through  the  enjoyment  of 
illegal  practices,  it  would  be  natural  to  suppose  that 
they  would  now  do  all  in  their  power  to  bring  such 
business  within  the  pale  of  the  law  with  the  least 
danger  of  loss  to  their  patrons  and  the  consequent 
depletion  of  their  own  revenue.  These  movements 
which  are  now  illegal  can  be  made  legal  by  the  carriers 
if  they  will  adjust  their  through  routes  and  rates 
so  as  to  provide  specifically  for  the  movement  of 
products  in  the  same  manner  that  they  have  hereto- 
fore moved  without  tariff  authority.  Moreover,  the 
carriers  could  so  adjust  their  rates  that  the  millers 
would  not  be  required  to  pay  in  the  aggregate  higher 
transportation  charges  upon  business  done  in  accord- 
ance with  the  law  than  they  did  on  movements  in- 
volving illegal  substitutions. 

Supplemental  Report  in  Transit  case,  25  I.  C.  C. 
Rep.,  130  (1912). 


—111- 


UNLAWFUL   SUBSTITUTIONS  ENUMERATED. 


100.  The  illegal  transfer  of  billing  to  a  shipper  who 

is  not  entitled  to  a  transit  privilege  thereon;  illegal 
transfer  of  grain  not  accompanied  by  the  proper  bill- 
ing and  the  application  to  such  grain  of  illegal  transit; 
the  according  of  transit  to  a  shipment  which  under 
the  tariff  should  be  "representative"  of  the  inbound 
movement,   but   which   was  not  so  "representative;" 
according  transit  to  shippers  far  in  excess  of  their 
transit  credits;  the  permitting  of  retention  of  billing 
after  grain  had  been  disposed  of;  the  movement  of 
transit  and  non-transit  articles  in  the  same  carload 
without  tariff  authority  therefor;  the  use  of  transit 
after  the  expiration  of  time  limit  named  in  the  tariffs ; 
the  using  of  expense  bills  covering  grain  destroyed 
by  fire  on  other  grain ;  the  substitution  of  the  products 
of  one  kind  of  grain  for  the  products  of  another  kind 
of  grain;  the  according  of  transit  privileges  on  non- 
transit   ingredients   of  mixed    feeds;   the  illegal   use 
of  surplus  billing  accumulated  by  reason  of  the  dif- 
ference between  the  actual  weights  and  the  minimum 
weights  of  the  inbound  movement,  also  accumulated 
by  less  than  carload  non-transit  movements  out,  by 
movements  to  non-transit  points,   by  local  consump- 
tion, by  movement  out  by  water,  by  loss  of  grain  in 
transit,  and  by  shrinkage;  the  plain  substitution  of 
one  gi-ain  for  an  entirely  different  grain;  the  move- 
ment out,  pound  for  pound,  of  products  which  could 
not  have  been  derived  from  the  inbound  grain,  and 
with  no  allowance  for  offal ;  and  the  palpable  manipu- 


—112— 

latioii  of  billing  and  defeating  the  rates  in  cents  per 
100  pounds. 

The  Commission  is  thoroughly  advised  as  to  many 
of  the  illegal  practices  in  vogne  and  shall  proceed  to 
take  such  action  as  the  law  provides  for  punishment 
for  and  prevention  of  such  unlawful  practices. 

The  Transit  Case,  24  I.  C.  C.  Rep.,  340  (1912). 


COMMERCIAL   CONDITIONS   RENDER  IT   IMPOSSIBLE  TO   RE- 
SHIP  IDENTICAL  COMMODITY. 

161.  The   theory  under  which  a   transit  privilege  is 

granted  is  that  the  inbound  commodity  will  be  sub- 
jected to  certain  treatment  and  afterwards  moved  out 
under  the  balance  of  the  through  rate.  To  express  the 
ideal — the  identical  commodity,  in  its  original  or  other 
commercial  form,  should  move  from  the  transit  point. 

But  commercial  conditions  render  this  impossi- 
ble, and  we  must  therefore  look  for  such  regulations 
as  will  subserve  both  the  purposes  of  the  act  and  of 
our  commerce.  Manifestly  such  substitution  as  corn 
of  one  color  for  that  of  another,  of  spring  wheat  for 
winter  wheat,  or  of  other  commodities  analogous  only 
by  their  comprehension  under  a  generic  term,  is  in 
accord  neither  with  the  spirit  of  the  law  nor  the  theory 
under  which  transit  is  extended.  However,  it  some- 
times happens  that  grains  of  different  kinds  may 
move  into  a  transit  point  under  the  same  transit 
rates,  and  such  commodities,  after  being  there  milled, 
mixed,  or  otherwise  subjected  to  treatment,  move  out 


—113— 

to  their  final  destination  on  the  balance  of  the  through 
rate  which  is  the  same  for  the  mixed  commodity  as 
would  obtain  had  they  moved  separately. 

Under  these  conditions  the  published  rates  are 
in  no  wise  defeated  and  no  preference  is  extended  to 
one  shipper  over  another.  This  we  do  not  regard  as 
a  substitution,  and  in  our  opinion  the  practice,  if 
properly  policed,  is  not  in  contravention  of  the  prin- 
ciple of  the  act.  Where  a  commodity  must  of  neces- 
sity lose  its  actual  identity,  as  in  the  case  of  grain 
going  into  an  elevator,  it  would  be  absurd  to  say  that 
such  identity  must  be  preserved.  Nor  do  we  think 
this  view  properly  subject  to  such  interpretation  as 
may  be  violative  of  the  law,  for  it  is  incumbent  alike 
upon  shippers  and  carriers  to  see  that  there  is  actu- 
ally on  hand  at  the  transit  point  sufficient  and  proper 
inbound  tonnage  to  justify  the  outbound  movement. 

Ibid. 


SUBSTITUTION  UNDER  CENTRAL  FREIGHT  ASSOCIATION  GRAIN 
RULES  DISCUSSED. 

162.  Complaint  has  been  made  that  sub-section    (b) 

of  Rule  14  of  Central  Freight  Association  Transit 
Circular  can  be  so  applied  as  to  permit  the  manipu- 
lation of  expense  bills.    Sub-Section  (b)  is  as  follows: 

(b)  It  is  not  expected  that  the  identity  of  each 
carload  of  grain  or  grain  products  can  or  will  be 
preserved  in  the  process  of  milling  or  malting,  but  it 
is  not  permissible  to  make  any  substitution  that  im- 


—114— 

pairs  the  integrity  of  the  through  rate;  substitution, 
however,  is  not  accomplished  under  this  rule  when 
grain  or  grain  products  are  mixed  or  blended  at  the 
transit  point  for  milling  or  grading  purposes  and  in- 
bound billing  covering  carloads  of  the  grain  entering 
into  the  blend  is  surrendered  in  the  same  ratio  as  was 
observed  in  the  l)lending,  and  the  through  rate  (sub- 
ject to  Eule  10)  applied  from  point  of  origin  shown 
on  the  inbound  billing  surrendered  to  destination  of 
the  grain  products.  To  illustrate:  Ten  carloads  of 
wheat  may  be  shipped  from  three  different  rate  ter- 
ritories, say  six  cars  of  spring  wheat  from  the 
Dakotas,  tw^o  cars  of  hard  wheat  from  Kansas  and  two 
cars  of  soft  winter  w^heat  from  Illinois,  mixed  or 
blended,  may  be  forwarded  in  full  carloads  at  the 
through  rate  lawfully  applicable  from  point  of  origin 
of  the  wheat  shown  by  corresponding  inbound  bill- 
ing surrendered,  as  provided  in  rule  Ko.  12,  it  being 
understood  that  in  the  selection  of  inbound  billing 
to  match  against  outbound  shipments,  shippers,  mill- 
ers or  malsters  will  select  six  Dakota,  tw^o  Kansas 
and  tw^o  Illinois  representative  inbound  bills  and  not 
select  ten  inbound  bills  from  the  lowest  rate  terri- 
tory. 

While  we  shall  keep  this  protest  and  rule  under 
consideration,  on  the  showing  thus  far  made  we  do 
not  feel  justified  in  condemning  the  rule  at  this  time, 
preferring  to  watch  the  result  of  its  trial  under  a 
rigid  policing. 

Supplemental  Report  in  Transit  case,  25  I.  C.  C. 
Rep.,  130  (1912). 


-115— 


XVI.     POLICING. 


CARRIER    AND    SHIPPER    HELD    ALIKE    RESPONSIBLE    FOR 

ABUSES  IN  SUBSTITUTION. 

163.  The  Commission  docs  not  condemn  the  transit 
privileges  as  such,  but  holds  that  the  responsibility  for 
safe-guarding  and  policing  the  transit  privileges,  to 
the  end  that  the  lafully  published  rate  shall  be  col- 
lected, rests  entirely  upon  carrier;  shippers,  however, 
will  not  be  excused  in  any  case  where  they  defeat 
published  rates  by  any  abuse  of  transit  privileges. 
The  duty  of  shippers  to  pay  published  rates  is  pre- 
cisely the  same  as  the  duty  of  carriers  to  collect  such 
rates. 

In  the  Matter  of  S^uhstitution  of  Tonnage  in  Tran^ 
sit,  18  I.  C.  C.  Eep.,  280   (1910). 

DUTY  OF  SHIPPER  TO  SUBMIT  TO  POLICING. 

164.  It  is  the  duty  of  shippers  to  submit  to  all  neces- 
sary policing  of  their  shipments  if  they  desire  to  enjoy 
transit  privileges,  and  they  may  also  fairly  be  required 
to  certify  that  shipments  offered  by  them  are  entitled 
to  go  forward  upon  the  transit  rates. 

Ihid. 


-116- 


DUTY  OF  COMMISSION  TO  SUPERVISE  AND  REGULATE. 

165.  These  privileges  bad  grown  up,  and  the  Commis- 
sion found  them  in  full  vigor  when  the  act  to  regulate 
commerce  became  a  law.  In  the  earlier  cases  we  hesi- 
tated, in  the  absence  of  power  to  regulate  transit,  to 
lend  our  approval  to  the  practice.  In  fact,  many 
carriers  and  shippers  insisted  that  the  practice  be 
abolished  altogether  and  that  flat  rates  be  substituted 
in  lieu  thereof.  However,  today  transit  has  become  a 
practice  of  such  universal  prevalence  upon  all  the  rail- 
roads that  it  has  become  much  the  duty  of  this  Com- 
mission under  the  law  as  amended  to  supervise  and 
regulate  these  rules  and  practices  as  the  rates,  rules, 
and  practices  generally  of  all  interstate  carriers. 

The  Transit  Case,  24  I.  C.  C.  Rep.,  340  (1912). 

TRANSIT  RULES  SHOULD  BE  UNIFORM. 

166 .  To  the  extent  that  undue  preference  exists  today 
in  connection  with  the  enjoyment  of  transit  privileges, 
such  preference  is  due  to  the  fact  that  the  transit  rules 
themselves  and  the  enforcement  of  these  rules  in  one 
territory  are  not  what  they  are  in  others.  In  other 
words,  varying  constructions  have  been  placed  upon 
the  law  in  the  promulgation  of  transit  rules. 

In  one  section  of  the  country  we  find  large  com- 
mercial interests  subjecting  themselves  to  transit  reg- 
ulations which  have  not  been  prescribed  by  the  car- 
riers but  which  have  been  voluntarily  undertaken  by 


—117— 

the  shippers  for  the  purpose  of  brinfjing  their  busi- 
ness into  conformity  with  the  law. 

Many  of  the  great  grain  carrying  roads  of  the 
west,  where  the  grain  tonnage  is  very  large,  have  left 
the  matter  of  transit  privileges  open  to  unlawful  prac- 
tices by  the  shipper  in  defiance  of  the  law,  and  it  may 
be  added  that  the  investigations  of  the  Commission 
disclosed  the  existence  of  almost  universal  practices 
in  this  territory. 

The  abolition  of  undue  prejudice  and  unjust  dis- 
crimination could  readily  be  accomplished  by  uniform 
rules  that  would  provide  a  minimum  of  restriction  to 
the  transit  privileges,  the  result  of  which  would  pro- 
mote the  very  practices  which  the  Commission  seeks 
to  eradicate.  The  mandate  of  the  law  is  plain.  The 
sole  purpose  of  the  transit  rules  is  to  so  regulate  and 
police  the  application  of  the  privilege  that  the  aim 
of  the  law  shall  not  be  defeated.  We  must  look  to  the 
transit  rules  which  are  filed  with  the  Commission 
from  the  view  point,  and  accordingly  as  they  do  or  do 
not  accomplish  their  purpose,  either  in  which  they  pro- 
vide or  fail  to  provide  they  must  stand  or  fall. 

Ihid. 


COMMISSION'S  RULES  FOR  POLICING. 

167.  Considering  all  the  circumstances  and  conditions 

appearing  from  the  investigations  of  the  Commission, 
It  is  held,  That  the  respondents  shall  be  required  to 
establish  rules  for  the  policing  of  transit  privileges  on 


—118— ^___ 

grain  and  grain  products  which  shall  require — a.  Cer- 
tificate as  to  the  transportation  character  of  all  grain 
contained  in  a  transit  house;  b.  That  a  daily  report 
shall  be  furnished  by  the  receiver  of  a  transit  privi- 
lege which  shall  state  the  required  information  as  to 
the  contents  of  a  transit  house,  if  any  of  said  contents 
is  accorded  a  transit  privilege;  c.  That  there  shall  be 
recorded  with  the  policing  authority  of  the  carriers, 
within  a  reasonable  time  after  the  shipments  have  been 
received  at  transit  point,  all  said  expense  bills ;  d.  That 
all  surplus  billing  shall  be  cancelled  absolutely  at  the 
close  of  each  business  day ;  e.  That  the  railroad  billing 
of  the  inbound  and  outbound  movement  shall  describe 
with  sufficient  particularity  the  commodity  upon  which 
the  transit  privilege  is  accorded ;  f.  That  the  outbound 
billing  shall  show  full  reference  to  the  inbound  billing; 
g.  That  the  transit  privilege  shall  be  limited  absolutely 
to  one  year,  at  the  expiration  of  which  time  all  privi- 
leges shall  cease  and  full  local  rate  commodity  or  class, 
both  into  nuCi  out  of  the  transit  point,  shall  apply;  h. 
That  there  shall  be  deducted  an  arbitrary  loss  in  pro- 
cess of  milling  wheat  of  not  less  than  one  per  cent,  of 
the  weight  of  the  wheat;  in  the  malting  of  barley  of 
not  less  than  16%  of  the  weight  of  the  barley;  in  the 
drying  of  corn  of  not  less  than  10%  of  the  weight  of 
the  corn;  in  the  shelling  of  corn  of  not  less  than  20% 
of  the  weight  of  the  corn ;  and  in  the  cleaning  and  clip- 
ping of  grains  of  not  less  than  11/2%  of  the  weight  of 
the  grain ;  and  i.  That  in  according  to  the  transit  priv- 
ilege upon  the  products  of  grain  milled  or  treated  in 
transit,  the  policing  authority  shall  be  required  to  bal- 


—119— 

ance  the  outbound  movement  of  the  product  against 
the  inbound  movement  of  the  grain  upon  the  basis  of 
well  known  average  ratios  of  the  products  of  the  grain. 
This  same  general  principle  shall  be  applied  to  mixed 
feed. 

Ibid. 


APPROVAL  OF   BUREAUS   FOR   POLICING   PURPOSES. 

168.  At  few  of  these  bureaus  an  almost  perfect  check 
is  kept  of  the  inbound  and  outbound  shipments,  excess 
billing  is  cancelled  daily,  and  daily  and  monthly  re- 
ports are  required  from  the  transit  houses;  through 
others  the  system  is  not  so  thorough  and  leaves  room 
for  much  improvement.  At  points  where  there  is  not 
sufficient  business  to  justify  the  maintenance  of  an  in- 
dependent inspector,  the  agent  of  the  carrier  might  also 
act  as  the  agent  of  the  inspection  bureau,  but  he  should 
be  subject  to  the  frequent  check  and  constant  super- 
vision of  the  bureau.  What  we  say  in  approval  of  the 
inspection  bureau  system  must  not  be  understood  as 
transferring  the  responsibility  of  the  carrier  to  the  bu- 
reau. We  recognize  the  establishment  of  these  bu- 
reaus as  agents  of  the  carriers,  in  the  discharge  of  a 
duty  imposed  upon  them  by  law. 

Ibid. 

169.  The  lines  in  Trunk  Line,  Central  Freight  Associa- 
tion and  Southeastern  and  Mississippi  Valley  terri- 
tories have  adhered  to  or  adopted  the  publication  of 
uniform  rules  and  the  delegation  of  policing  to  their 


-120- 


respectivo  inspection  bureaus  thereby  bringing  about 
more  effective  policing  and  uniformitj'^  of  operation. 

West  of  the  Mississipiji  River  an  Inspection  Bu- 
reau has  been  in  existence  for  several  years,  but  its  op- 
eration is  encumbered  by  so  many  diversified  rules  of 
particulai'  carriers,  and  so  comjilex  and  voluminous  a 
system  of  reporting,  frequently  differing  with  each  line, 
that  the  policing  of  transit  tonnage  is  an  absolute  hard- 
ship upon  the  shipper.  Instead  of  reporting  to  one 
inspection  office,  a  grain  dealer  or  miller  is  compelled 
to  report  to  each  particular  carrier,  and  upon  forms  or 
blanks  peculiar  to  such  carrier.  One  miller,  whose 
tonnage  was  handled  by  four  different  roads,  was  re- 
quired to  make  approximately  sixty  reports  each  day. 
The  same  conditions  exist  in  the  territory  northwest 
of  Chicago,  where,  for  the  section  as  a  whole,  no  bureau 
whatever  polices  the  transit.  The  carriers  in  these  sec- 
tions has  subjected  themselves  to  well  merited  criti- 
cism for  their  failure  Jointly  to  handle  this  feature  of 
transit  in  a  uniform  and  intelligent  manner,  and  we 
are  convinced  that  the  shippers  in  these  sections  are 
entitled  to  relief.  Where  efficient  transit  bureaus  are 
in  operation  but  a  single  report  to  a  transit  inspector 
is  required,  and  no  complaint  is  heard.  In  our  last 
report  we  recommended  the  establishment  of  transit 
bureaus,  deeming  this  the  most  practicable  method  of 
policing,  making  at  once  for  simplicity,  uniformity  and 
efficiency.  It  is  but  fair  to  say  that  better  results  can 
be  obtained  through  the  medium  of  such  an  agency 
interested  more  in  the  uniform  application  of  rules 
than  the  matter  of  railroad  revenue  or  tonnage.     More- 


—121— 

over,  such  an  institution,  properly  constituted,  is  bet- 
ter adaiJted  to  the  disposition  of  new  situations  which, 
at  least  for  some  time,  will  continue  to  arise. 

Supplemental  Report  in  Transit  case,  25  I.  C.  C. 
Rep.,  130   (1912). 

RECORDS. 

170 .  The  records  of  the  transit  house,  in  so  far  as  they 
are  subject  to  the  transit  rules,  are  railroad  records  as 
defined  in  section  20  of  the  act,  and  are  subject  to  the 
control  and  inspection  of  both  the  respondent  and  the 
Commission. 

The  Transit  Case,  24  I.  C.  C.  Rep.,  340  (1912). 

CERTIFICATES. 

171 .  It  is  our  conclusion  upon  the  record  that  the  rules 
shall  provide  that  at  the  time  of  each  shipment  certifi- 
cates shall  be  furnished  by  those  shipping  out  of  a  tran- 
sit house  as  to  whether  or  not  the  commodity  is  en- 
titled to  a  transit  privilege,  and  also  whether  the  com- 
modity has  or  has  not  theretofore  been  accorded  a  tran- 
sit privilege,  and  if  any  commodity  entitled  to  a  tran- 
sit privilege  has  been  mixed  with  the  contents  of  a 
transit  house,  such  certificate  shall  be  furnished  as  to 
each  and  every  shipment  therefrom.  This  requirement 
is  vital  for  the  proper  application  of  both  the  inbound 
and  outbound  rates,  and  also  for  the  proper  cancella- 
tion of  surplus  billing. 

Ibid. 


—122— 


DAILY  REPORTS. 

172 .  Upon  the  basis  of  our  investigations  it  is  our  opin- 

ion that  there  shall  be  required  a  daily  report  from 
the  transit  house  to   the  policing  authorities  which 
should  show  at  the  close  of  business  each  day  a  classi- 
fication of  receipts  and  shipments  of  the  total  move- 
ment into  and  out  of  the  transit  house,  if  any  of  the 
commodity  contained  therein  is  to  bo  accorded  the  right 
of  transit.     This  report  should  show  all  tonnage  han- 
dled through  the  transit  house  as  follows :     All  grain 
and  grain  products  handled,  point  of  origin  of  the 
grain  and  destination  of  the  product,  and  whether  re- 
ceived or  forwarded  by  rail,  boat,  wagon  or  otherwise, 
which  record  must  clearly  show  in  pounds,  separately ; 
grain  received  by  rail;  grain  received  by  boat;  grain 
received  by  wagon ;  grain  transferred  from  elevator  to 
mill;  grain  products  forwarded  by  rail  (local  or  non- 
transit)  ;  gi^ain  products  forwarded  by  boat  (local  and 
non-transit)  ;  grain  products  disposed  of  locally   (by 
rail   or  wagon)  ;   grain   products   forwarded   by   rail 
(transit)  ;  grain  products  forwarded  by  boat   (tran- 
sit) ;   grain  products   transferred;   total   tonnage   on 
hand. 
Ihid. 

173.  In  dealing  with  the  question  of  reports  we  said 

that  transit  houses  should  be  required  to  report  daily 
the  total  in  and  out  movement  of  all  grain  if  any  of  it 
were  to  be  accorded  a  transit  privilege.  Instances 
arise  in  which  a  transit  house  receives  or  ships  several 


—123— 

kinds  of  grain — say,  wheat,  corn  and  oats — but  the 
transit  privilege  applies  only  to  wheat.  In  such  cases 
no  report  is  necessary  as  to  the  corn  and  oats,  but  is 
essential  as  to  all  wheat,  whether  transit  or  non-tran- 
sit, handled  through  the  house.  In  other  words,  the 
daily  report  need  cover  only  the  commodity  or  com- 
modities upon  which  a  transit  privilege  is  granted,  but, 
as  to  those  commodities,  must  include  both  the  tran- 
sit and  non-transit.  Again,  on  days  when  the  transit 
house  receives  or  ships  no  grain  of  a  kind  upon  which 
transit  is  accorded,  and  the  report  would  be  but  a  du- 
plicate of  that  made  for  the  preceding  day,  it  will  be 
sufficient  if  the  report  merely  state  that  fact.  To  this 
extent  our  previous  order  is  modified.  Supplemental 
report  in  Transit  case,  25  I.  C.  C.  Rep.,  130  (1912). 

EXPENSE  BILLS. 

174.  It  is  our  conclusion  that  it  is  necessary  for  the 
rules  to  require  that  there  shall  be  recorded  with  the 
policing  authorities  all  paid  expense  bills  within  a  rea- 
sonable time  after  the  shipment  has  been  received. 
This  record  is  further  necessary  in  order  to  advise  the 
bureau  of  the  transfer  of  tonnage  from  one  transit 
house  to  another. 

Transit  Case,  24  I.  C.  C.  Rep.,  340  (1912). 

DAILY  CANCELLATION  OF  BILLING. 

175.  It  is  our  further  conclusion  that  the  rules  must 
require  that  the  surplus  billing,  that  is  to  say,  all  bill- 


—124— 

inj;  which  does  not  represent  grain  actually  on  hand, 
shall  be  cancelled  absolutely  at  the  close  of  each  day. 
This  daily  cancellation  down  to  the  basis  of  stock  on 
hand  is  vital  and  we  shall  insist  on  a  literal  adher- 
ence thereto. 

Ibid. 


TIME  LIMIT. 

176 .  Upon  the  facts  disclosed  of  record  in  this  case,  we 

are  of  the  opinion  and  find  that  in  order  to  prevent  un- 
lawful practices  the  tariffs  shall  contain  a  rule  prohib- 
itinc:  the  application  of  a  transit  privilege  upon  presen- 
tation of  expense  bills  after  a  period  of  twelve  months 
from  the  date  of  said  expense  bills. 

The  important  thing  in  this  connection,  however, 
is  that  the  expiration  of  the  time  limit  prescribed  in 
the  tariffs  means  that  the  commodity  has  then  become 
localized;  that  all  transit  privileges  accorded  to  the 
commodity  shall  absolutely  cease,  and  that  full  local 
rates,  commodity  or  class,  shall  be  assessed  for  any 
movement  of  the  commodity  whatsoever.  Further- 
more the  rates  theretofore  collected  upon  the  commod- 
ity shall  after  the  expiration  of  the  stated  period  be 
corrected  to  the  basis  of  a  movement  wholly  separate 
and  apart  from  any  idea  of  associating  said  movement 
with  a  transit  privilege.  In  other  words,  the  rates 
shall  then  be  the  local  rates  both  into  and  out  of  the 
point  of  transit. 

Ibid. 


—1^5— 

WASTAGE. 

177.  The  general  average  of  the  ratio  of  products  that 

may  be  derived  from  a  given  quantity  of  grain  of  a 
particular  kind  when  put  through  milling  process  is 
well  known,  as  was  demonstrated  upon  the  recent  hear- 
ings. The  respondents  and  millers  shall  take  due  and 
proper  notice  of  these  average  ratios.  From  the  neces- 
sities of  the  case  a  certain  amount  of  leeway  must  be 
permitted  in  this  regard  which  from  our  knowledge  of 
the  situation  we  think  contemporarily  be  left  with  the 
policing  authority,  and  we  shall  at  this  time  refrain 
from  ordering  in  arbitrary  divisions  of  grains  into 
products. 

In  order  that  this  important  feature  of  transit 
shall  not  place  undue  restraint  upon  one  section  of  the 
country  or  operate  to  the  disadvantage  of  the  smaller 
millers,  and  for  the  purpose  of  securing  that  uniform- 
ity of  regulation  to  which  the  milling  industry  of  the 
country  as  a  whole  is  entitled  and  which  it  is  our  pres- 
ent aim  to  substantially  prescribe,  we  find  that  the  re- 
spondent shall  be  required  to  embody  in  their  tariffs 
a  rule  requiring  the  policing  authority  to  daily  balance 
the  outbound  movement  of  products  against  the  in- 
bound movement  of  the  grain  upon  the  basis  of  the 
well  known  average  ratios  of  the  products  to  the  par- 
ticular grain,  the  actual  divisions  to  be  balanced  at 
intervals  not  less  than  four  times  a  year,  cordially. 

The  millers  will  then  know  from  the  tariffs  them- 
selves that  their  billing  will  be  cancelled  to  correctly 
represent  the  weight  of  the  grain  from  Avhich  the  prod- 


—126— 

ucts  could  have  been  niauufaetured,  aud  the  responsi- 
bility will  then   rest  directly   npon   the  policing  au- 
thority. 
Ibid. 

178.  Complaint  has  been  made  that  our  order  required 

too  great  a  percentage  be  deducted  to  cover  the  loss 
incident  to  the  drying  of  corn.  The  order  makes  no 
final  arbitrary  deduction,  but  specifically  provides  that 
the  actual  outturn  of  the  grain  shall  be  credited  to  the 
miller  in  his  transit  account  not  less  than  four  times 
a  year,  quarterly,  leaving  it  optional  with  the  miller 
and  the  carrier  to  make  the  actual  balance  monthly, 
weekly  or  daily,  as  the  exigencies  of  the  particular 
case  may  require. 

Nothing  was  said  in  the  order  in  connection  with 
the  drying  of  wheat.  It  appears  that  some  wheat  is 
of  such  a  character  that  it  is  necessary  to  subject  it  to 
a  drying  process,  thereby  entailing  a  loss  in  weight. 
This  loss  can  be  taken  care  of  by  making  the  proper 
deductions  at  the  time  of  balancing  the  transit  ac- 
count, not  less  than  four  times  a  year,  quarterly. 

Where,  after  cleaning  and  the  removal  of  screen- 
ings, grain  that  has  become  mixed  as  in  planting  or 
harvesting  is  put  through  a  separating  process,  it  was 
found  that  the  policing  authorities  could  ascertain 
from  the  records  the  actual  result  of  the  separation  and 
could  credit  the  grains  as  separated  against  the  rep- 
resentative billing,  permitting  shipments  to  move  out 
properly  described.  Supplemental  report  on  Transit 
case,  25  I.  C.  C.  Rep.,  130  (1912). 


—127— 

MIXED  FEED. 

179 .  We  are  of  the  opinion  that  the  same  general  prin- 

ciple as  to  the  balancing  of  the  material  or  grain  ac- 
count against  the  products  moving  from  the  transit 
point  shall  apply  uniformly  to  mixed  feeds,  based  upon 
a  knowledge  of  the  industry.  This  question  of  mixed 
feeds  has  been  recently  passed  upon  in  the  Memphis 
case  decided  concurrently  herewith  wherein  it  was 
Heldy  That  when  a  commodity  was  manufactured  from 
material  more  than  20%  of  which  was  of  non-transit 
material,  it  should  no  longer  be  entitled  to  a  transit 
privilege  but  should  be  considered  as  separate  and 
distinct  commodity  and  take  a  rate  specifically  pre- 
scribed therefor  from  the  transit  point.  This  disposi- 
tion of  the  mixed  feed  question  greatly  simplifies  the 
application  of  transit  thereto. 

In  assessing  rates  upon  mixed  feed  to  and  from 
the  point  of  transit,  it  shall  be  proper  to  assess  the 
rates  upon  the  portion  of  the  tonnage  lawfully  entitled 
thereto  under  the  tariff  upon  the  basis  of  the  transit 
privilege,  and  the  balance,  if  the  shipment  moves  in 
carload  quantities,  may  be  assessed  at  the  local  car- 
load rate  from  the  transit  point. 

Transit  Case,  24  I.  C.  C.  Rep.,  310  (1912).  See 
also  Memphis  Grain  d  Hay  Assn.  vs.  St. 
L.  &  San.  Francisco  R.  R.  Co.  et  al.,  24  I. 
C.  C.  Rep.,  609  (1912). 


—128— 

DISSENTING  OPINION   PERTAINING  MIXTURE  TRANSIT   AND 
NON-TRANSIT  COMMODITIES. 

180.  In  my  opinion  many  forms  of  transit  are  of  bene- 

fit and  should  be  encouraged  rather  than  discouraged^ 
and  this  is  especially  true  of  the  milling  of  grain  in 
transit.  Without  wishing  to  enter  upon  any  general 
discussion  of  the  subject  I  do  desire  to  call  attention 
to  one  phase  of  the  matter  which  should  receive  spe- 
cial consideration  in  view  of  the  present  tendencies  in 
the  making  of  rates  on  grain  and  grain  products. 

Carriers  now  maintain  from  several  important 
primary  markets  what  are  termed  reshipping  rates 
upon  grain  and  the  products  of  grain.  These  rates  are 
based  upon  the  assumption  that  the  grain  is  moved  by 
rail  into  the  point  from  which  they  apply,  but  no  evi- 
dence of  that  fact  is  required  when  the  out  movement 
occurs,  nor  is  any  account  taken  of  the  point  of  origin 
in  applying  the  reshipping  rate. 

There  can  be  no  question  that  this  system  of  rate 
making  offers  many  desirable  features.  It  has  been 
approved  by  this  Commission  recently  in  two  cases  in 
which  such  rates  from  Chicago  and  from  St.  Louis 
were  under  consideration.  We  have  recently  sug- 
gested that  similar  rates  should  be  established  at  Mem- 
phis and  have  ordered  a  rehearing  of  the  case  brought 
by  grain  interests  at  Sioux  City,  Iowa,  with  a  view  of 
putting  in  the  same  system  of  rates  at  that  point. 

It  is  evident,  however,  that  such  in  and  out  rates 
cannot  be  established  at  all  small  interior  points  at 


—129— 

which  the  mill  in  j^-  industry  is  condncted,  and  the  pres- 
ent practice  is  to  provide  for  these  points  by  the  estab- 
lishment of  a  milling  in  transit  privilege.  Eates  are 
so  adjusted  that  from  a  given  point  of  origin  to  a  given 
destination  the  through  rate  is  the  same  as  the  sum  of 
the  reshipping  rates,  so  that  the  interior  miller  enjoys 
in  theory  the  same  rate  as  does  his  competitor  located 
at  a  reshipping  market. 

While,  however,  this  is  so  in  theory,  the  interior 
miller  rests  under  certain  serious  disabilities,  if  the 
transit  rules  in  the  past  enunciated,  by  this  Commis- 
sion are  to  be  rigidly  adhered  to. 

There  is  often,  and  perhaps  generally,  a  milling 
in  transit  penalty  which  the  miller  at  the  reshipping 
point  does  not  pay,  and  there  is  also  the  inconvenience 
of  the  vavious  policing  regulations,  which  of  necessity 
are  more  or  less  burdensome. 

But  the  real  difficulty  under  which  the  interior 
miller  labors  is  in  not  being  able  to  combine  in  the 
same  carload  transit  and  non-transit  stuff  and  in  being 
compelled  to  recognize  in  the  use  of  transit  both  the 
point  of  origin  and  the  point  of  destination. 

The  producer  of  mixed  feed  at  St.  Louis,  for  exam- 
ple, ships  out  the  entire  carload  at  the  reshipping  rate 
which  is  applicable  to  the  grain  product,  irrespective 
of  the  source  from  which  the  various  ingredients  have 
been  obtained.  The  manufacturer  of  the  same  article 
at  some  point  between  St.  Louis  and  the  seaboard  mar- 
ket can  only  apply  his  transit  to  a  portion  of  the  car- 


—130— 

load  and  is  obliged  to  pay,  or  rather  has  been  obliged 
to  pay,  the  less  than  carload  rate  npon  the  nou-transit 
portion  of  the  carload. 

In  grinding  wheat  the  interior  miller  must  send 
approximately  70%  along  as  flonr  and  the  balance  as 
offal,  while  at  St.  Louis  the  miller  may  send  his  flour 
to  one  point  and  his  offal  to  another,  irrespective  of 
the  kind  of  wheat  which  he  grinds  or  the  point  from 
which  he  obtains  it. 

The  investigation  of  this  Commission  leave  no 
reasonable  doubt  that  if  reshipping  rates  are  to  be  ap- 
plied at  the  principal  markets,  and  if  strict  rules  of 
transit  like  those  in  force  today  in  the  southeast  are 
to  be  maintained,  the  only  possible  result  is  to  concen- 
trate the  milling  industry  at  the  primary  market.  This 
in  my  opinion  is  neither  a  wise  nor  a  just  thing.  As 
an  economic  proposition  I  believe  that  rates  of  trans- 
portation should  be  so  adjusted  that  the  small  miller 
at  the  interior  point  may  operate  under  the  same  trans- 
portation charge  as  does  his  competitor  at  the  great 
ciiy.  There  is  no  reason  in  the  transportation  itself 
which  justifies  different  treatment,  and  it  is  for  the 
general  interest  of  the  country  that  industries  should 
be  diffusid  latJier  than  unduly  concentrated. 

To  this  end  it  is  necessary  that  the  interior  miller 
should  be  permitted  to  do  under  transit  in  substance 
what  the  miller  at  the  large  center  can  do  under  his 
reshipping  rates.  This  I  believe  can  be  accomplished 
without  discrimination  and  without  injustice,  and  the 


—131— 

decisions  of  this  body  recently  made  go  far  in  that 
direction. 

We  have  recently  held  in  the  ^' Southwestern"  case, 
decided  concurrently  herewith,  that  transit  and  non- 
transit  articles  may  be  sent  from  the  millinj^  point  in 
the  same  car  at  the  carload  rate.  This  permits  the 
interior  miller  to  do  precisely  what  the  reshipping 
miller  does. 

We  hold  in  this  proceeding  that  the  manufacturer 
of  mixed  feed  may  have  the  benefit  of  transit  upon  the 
transit  portion  and  may  pay  the  carload  rate  upon  the 
non-transit  portion,  provided  of  course  that  an  entire 
carload  is  shipped.  This  again  is  precisely  what  the 
manufacturer  of  the  same  article  at  a  reshipping  point 
can  do. 

In  my  opinion  the  same  rule  should  be  applied  iu 
the  grinding  of  wheat.  No  distinction  should  be  made 
in  the  out  movement  between  the  flour  and  the  by 
product.  There  should  be  an  arbitrary  reduction  as 
suggested  in  the  opinion,  from  the  weight  of  the  wheat 
to  take  care  of  the  loss  in  milling,  but  when  that  is 
provided  for  I  do  not  think  any  question  should  be 
made  as  to  whether  the  out  movement  is  flour  or  offal. 
The  miller  should  be  permitted  to  ship  his  offal  where 
he  will  and  his  flour  where  he  can  best  dispose  of  it  at 
whatever  transit  rate  he  may  be  able  to  use  from  his 
in-billing. 

This  certainly  does  involve  a  possible  substitution 
of  tonnage,  and  so  does  all  milling  in  transit  and  all 


—132— 

elevation  in  transit  which  does  not  require  that  the 
identity  of  the  grain  shall  be  preserved. 

It  will  not,  in  my  judgment  result  in  harmful  dis- 
crimination or  in  defeating  the  published  rates.  In 
actual  result  it  is  precisely  what  the  miller  at  the  re- 
shipping  point  does,  and  his  competitor  at  the  interior 
point  must  have  the  same  privilege  if  he  is  to  continue 
to  grind  in  competition. 

This  is  a  practical  question  which  should  be  dealt 
with  in  a  practical  and  not  in  a  theoretical  way.  The 
rule  as  above  stated  has  been  universally  observed  in 
the  past,  and  the  milling  industry  has  grown  up  under 
it.  It  ought  not  now  to  be  changed,  when  the  effect 
of  the  change  must  be  to  drive  the  small  miller  out 
of  existence,  unless  there  is  some  actual  necessity  for 
the  change. 

So  far  as  I  am  informed,  the  serious  discrimina- 
tion in  the  past  has  been  at  these  important  markets 
like  Chicago,  St.  Louis,  etc.,  where  the  local  consump- 
tion is  large  and  where  surplus  billing  was  readily 
available.  It  has  not  been  felt  at  the  interior  point. 
If  now  the  difficulty  at  the  great  center  can  be  taken 
care  of,  as  I  believe  it  should  be  by  the  reshipping 
rate,  then  we  may  well  allow  at  the  small  interior  point 
a  more  liberal  rule  than  would  otherwise  be  possible. 

Dissenting  opinion,  Chairman  Prouty. 

Ihid. 


—133— 

MIXTURE  NON-TRANSIT  AND  TRANSIT  ASSISTS  SMALL  MILLS. 

181 .  Upon  a  re-examination  of  the  question  the  appli- 

cation, on  a  mixed  carload  shipment  of  grain  or  grain 
products,  of  the  proportional  carload  rate,  or  the  bal- 
ance of  the  through  carload  rate,  to  the  transit  por- 
tion of  the  shipment,  and  of  the  flat  carload  rate  to 
the  non-transit  portion  not  found  objectionable  when 
restricted  by  the  tariff  provisions  suggested  in  the  re- 
port, and  when  the  traffic  is  otherwise  safeguarded  by 
the  requirements  of  the  rulings  of  the  Commission  re- 
specting transit  practices. 

Such  a  rate  adjustment  is  in  the  public  interest 
in  that  it  enables  small  mills  at  small  points  to  exist 
and  to  reach  the  markets  of  consumption  on  a  basis  of 
relative  equality  with  the  mills  at  larger  points. 

SoiitJiirestern  Millers  League  vs.  Atchirison,  To- 
peka  &  Santa  Fe  Rwy.  et  al.,  24  I.  C.  C.  Kep., 
552   (1912). 


-135— 


XVII.     CARRIER'S   DUTY  TO   FURNISH  CARS. 


DUTY  TO  FURNISH  EQUIPMENT  RESTS  UPON  INBOUND  CAR- 
RIER. 

182.  Complainants  ship  a  carload  of  corn  from  Omaha, 

Neb.,  to  Little  Rock,  to  be  there  milled  and  reshipped 
to  Fordyce,  Ark.  Shipment  moved  under  tariff  nam- 
ing through  rate  from  Omaha  to  Fordyce  via  Argenta, 
Ark.,  to  which  inbound  and  delivering  carriers  were 
parties,  in  connection  with  a  later  tariff  granting  tran- 
sit privileges  at  Little  Rock,  a  point  not  on  delivering 
carrier's  line.  To  this  later  tariff  the  delivering  car- 
rier was  not  a  party.  Both  carriers  refused  to  furnish 
transportation  equipment  for  the  outbound  movement 
from  Little  Rock,  each  claiming  that  it  was  the  duty 
of  the  other  to  do  so ;  Held,  That  as  delivering  carriers 
obligation,  under  the  tariff  to  which  it  was  a  party, 
does  not  accrue  until  delivery  to  its  own  rails.  The 
duty  to  furnish  equipment  for  outbound  movements 
from  complainant's  mills  rests  upon  the  inbound  car- 
rier, the  St.  Louis,  Iron  Mountain  &  Southern  Railway. 

Brook-Ranch  Mill  cC-  Elevator  Company  vs.  St. 
Louis  Iron  Mountain  cC-  Southern  Railway  Com- 
panij  ct  al.,  21  I.  C.  C.  Rep.,  C51  (1911). 


Table  of  Cases  Cited. 


-ISO- 


TABLE  OF  CASES   CITED. 


(References   are    to    Paragraphs.) 


Amended    section    N'o.    6 

American  Warehouseman  Assn.  vs. 
111.  Cent.  R.  R.  Co.  et  al. 

Anadarka  Cotton  Oil  Co.  et  al.  vs. 
A.  T.  &  S.  F.  Rwy.  Co.  et  al. 

Anderson-Clayton  Co.  et  al.  vs. 
C.  R.  I.  &  P.  Rwy.  Co.  et  al. 
St.  L.  &  S.  F.  R.  R.  Co.  et  al. 

Atchinson    et    al.    vs. 

Mo.   Pac.   Rwy.  Co.  et  al. 


Paragraphs 

59 

7  ICC  Rep.  556  (1898) 

122 

20  ICC  Rep.    43  (1910) 

83 

18  ICC  Rep.  340  (1910) 
17  ICC  Rep.    12  (1909) 

38 
151 

12  ICC  Rep.  Ill  (1907) 
12  ICC  Rep.  254  (1907) 

114 
114 

Bartlett   Commission   Co.  vs. 
111.   Cent.  R.  R.   Co.  et  al. 

Bash  Fertilizer  Co.  vs. 

Wabash   R.   R.   Co.   et  al. 

Bayou   City   Rice   Mills  et  al.  vs. 

Texas  &  New  Orleans  R.  R.  Co. 
et  al. 

Beekman  Lumber  Co.  vs. 

Kan.  City  Sou.  Rwy.  Co.  et  al. 
St.  L.  S.  W.  Rwy.  Co.  et  al. 

Blodgett  Milling  Co.  vs. 

C.  M.  &  St.  Paul  Rwy.  Co.  et  al. 

Board  of  Trade   Kansas   City  vs. 
C.  B.  &  Q.  R.  R.  Co.  et  al. 

Brook-Rauch  Mill  &  Elevator  Co.  vs. 
St.  L.  I.  M.  &  S.  Rwy.  Co.  et  al. 


19  ICC  Rep.  533  (1910) 
18  ICC  Rep.  522(1910) 

18  ICC  Rep.  490(1910) 


75 
44 

90 


17  ICC  Rep.    86(1909)  69,   7Z,   119 

14  ICC  Rep.  532(1908)  126 

2Z  ICC  Rep.  448(1912)  11,  95,  98 

12  ICC  Rep.  173  (1907)  74 

21  ICC  Rep.  651  (1911  182 


Cady,  H.  F.,  Lumber  Co.  vs. 
Mo.  Pac.  Rwy.  Co.  et  al. 

Cavers   Elevator  Co.   vs. 
U.  P.  R.  R.  Co. 

Cedar  Hill  Coal  &  Coke  Co.  et  al. 
Colo.  &  Sou.  Rwy.  Co.  et  al. 

Celina   Mill   &   Elevator  Co.   vs. 
St.  L.  S.  W.  R.  R.  Co.  et  al. 


19  ICC  Rep.    12(1910) 

15  ICC  Rep.    90(1909) 

16  ICC  Rep.  387(1909) 
15  ICC  Rep.  546  (1909) 

15  ICC  Rep.  138(1909) 


147 

85 


43,  120 
74 


71 


—140- 


Central  Yellow   Pine  Assn.  vs. 
V.  S.  &   Pac.  Rwy.  Co.  et  al. 


Chicag-o     &     Northwestern     Railway 
Company   Suspension  New  Tran- 
sit   Regulations 

Chikasaw   Compress    Co.   vs. 

Gulf  Colo.  &  S.  Fe  Rr.  Co.  et  al. 

Conference    Rulings 
Bulletin    No.   5 


Corn   Belt   Meat   Producers  Assn.  vs. 
C.   B.  &  Q.   R.   R.  Co.  et  al. 

Cotton,   re,    Unlawful   rates   and 
Practices  in  Transit 

Cowan   vs. 
Bond 

Crews  vs. 

Richmond   &   Danville   R.    R.   Co. 
et  al. 

Crowell   Lumber   &   Grain   Co.   vs. 
Union   Pacific   R.    R.   Co. 


10  ICC  Rep.  193  (1904) 


25  ICC  Rep.    90(1912) 
13  ICC  Rep.  187  (1908) 


14  ICC  Rep.  376(1908) 


8  ICC  Rep.  121  (1899) 


39  Fed.  Rep.  55 
2  ICC  Rep.  542  (1889) 


1   ICC  Rep.  490  (1887) 
1  ICC  Rep.  703  (1888) 

15  ICC  Rep.    90  (1909) 


4,  5,  18 

39,  51,  52 

57,  58 


96 


89 


Rule  No. 

5  (1907) 

12 

Rule  No. 

6  (1907) 

143 

Rule  No. 

17  (1908) 

8,  64 

Rule  No. 

53  (1908) 

140 

Rule  No. 

72  (1908) 

118,  121 

Rule  No. 

n  (1908) 

144 

Rule  No. 

80  (1908) 

138 

Rule  No. 

114  (1908) 

132 

Rule  No. 

119  (1908) 

128,  130 

Rule  No. 

166  (1909) 

143 

Rule  No. 

181   (1909) 

155 

Rule  No. 

203  (1909) 

154 

Rule  No. 

214  (1907) 

136 

Rule  No. 

230  (1909) 

136 

Rule  No. 

348  (1912) 

141 

Rule  No. 

350  (1912) 

152 

100 


3,  35,  55 

153 


1 
11 

85 


Deeves  Lumber  Co.  vs. 

Alabama  &  Vicksburg  Ry.  et  al. 

Diamond   Mills   vs. 

Boston    &    Maine    R.    R.    Co. 

Douglas  &  Co.  vs. 

C.  R.  I.  &  P.  Rwy.  Co.  et  al. 


Duncan,  W.  S.,  &  Co.  et  al.  vs. 
N.  C.  &  St.  L.  Rwy.  Co.  et  al. 


25  ICC  Rep.    42  (1912)  150 

9  ICC  Rep.  311  (1902)  21,  34.  50 

65,  66 

16  ICC  Rep.  232  (1909)  6,  23.  45 

21  ICC  Rep.    97(1911)  46 

21  ICC  Rep.  541  (1911)  47 

16  ICC  Rep.  590(1909)  101 

21  ICC  Rep.  186(1911)  106 


—141— 


Elevators 

Re,  Allowances  to 


12  ICC  Rep.   86(1907) 
24  ICC  Rep.  197(1912) 


78 


Folmer   &   Co.   vs. 

Gt.    Nor.    Rwy.    Co. 


15  ICC  Rep.    33(1909) 


147 


Gulf,  Colo.  &  Santa  Fe  Rwy.  Co.  vs. 
Texas 


Hanley   Milling  Co.   vs. 
Penna.    Co.    et    al. 

Hecker-Jones-Jewel    Milling   Co.    vs. 
B.  &  O.  R.  R.  Co.  et  al. 

Henderson   Elevator  Co.  vs. 
111.  Cent.   R.   R.  Co. 

Howard    Mills   Co.   vs. 

Mo.  Pac.   Rwy.  Co.  et  al. 


204  U.S.  403;  51  L.  ed. 
540;27Sup.  Ct.  Rep. 
360  Affirming 
97  Texas  274; 
78  S.  W.  495  (1907) 


19  ICC  Rep.  475  (1910) 

14  ICC  Rep.  356(1908) 

17  ICC  Rep.  573(1910) 

12  ICC  Rep.  258  (1907) 


26 

123 

44,  81,  82 
103,  111 

102 
54,  96 


Indianapolis    Freight    Bureau    vs. 

C.  C.  C.  &  St.  L.  Rwy.  Co.  et  al.     15  ICC  Rep.  370  (1909) 

Interstate  Commerce  Commission  vs. 
H.  J.  Diffenbaugh  et  al. 
F.    H.    Peavey    &   Co. 

Interstate  Commerce  Commission  vs. 
Goodrich   Transit   Company 

Interstate  Commerce  Commission  vs. 
Stickney 

Interstate   Remedy   Co.   vs. 
American    Express    Co. 


222  U.  S.  42,  56  L.  ed. 
(1911) 

28,  30,  n 

224  U.  S.  194  (1912) 

32 

215  U.  S.     98  Affirming 
164  Fed.  Rep.  638  (1909) 

30 

16  ICC  Rep.  436  (1909) 

142 

Johnson  &  Co.  et  al.  vs. 

A.  T.  &  S.  F.  Rwy.  Co.  et  al. 

Kansas   City  Hay  Co.   vs. 

St.  L.  &  S.   F.   R.   R.   Co. 

Kehoe,   T.   M.,   &  Co.  vs. 
111.   Cent.   R.    R.   Co. 

Kile   &   Morgan  vs. 

Deepwater    Rwy.    Co.    et   al. 


21  ICC  Rep.  637(1911)  91,  95 

14  ICC  Rep.  631  (1908)  76,  147 

14  ICC  Rep.  541  (1908)  145 

15  ICC  Rep.  235  (1909)  137,147 


—142— 


Klvce,  Henry  A.,  Co.  vs. 

111.  Cent    R.  R.  Co.  et  al.  19  ICC  Rep.  567  (1910)  157 

^""^Penna.   R.    R.   Co.  et   al.  10  ICC  Rep.  675  (1905)        40,  48.  84 

87,   88,    112 


Laurel    Cotton    Mills   vs. 

Gulf  &  Ship  Island  R.  R.  Co.  84  Miss.  339;  37  So.  134; 

66  L.  R.  A.  453  (1904)  53 

Listman    Mill    Co.   vs.  .„„„.              ,^    ,,^ 

C.  M.  &  St.  P.  Rwy.  Co.  et  al.  8  ICC  Rep.    47  (1898)             16,  116 

Lucas,  J.  R.,  &  Co.  vs. 

L.  &  N.  R.  R.  Co.  19  ICC  Rep.  533  (1910)                     7d 


Memphis  Freight  Bureau  et  al.  vs. 

St.  Louis  &  San  Francisco  R.  R.  Co.     24  ICC  Ren.  602  (1912)  15 

Memphis  Grain  &  Hay  Assn.  vs. 

St.  L.  &  S.  F.  R.  R.  Co.  et  al.  2\  ICC  Rep.  609  (1912)  179 

Merriam    &   Holmquist  vs.  

Union   Pacific  Rwy.  Co.  16  ICC  Rep.  337  (1909)  29 

Milling   In   Transit    Rates 

In  Re  17  ICC  Rep.  113  (1909)  128,  129,  130 

Mobile  &  Ohio  R.  R.  Co. 

Re,   Rates   and   Practices   of  9  ICC  Rep.  373  (1903)  7.  36,  56 

Muskogee,  Commercial  Club  &  Traf. 

Bureau  vs.  M.  K.  &  T.  Rwy.  Co.     12  ICC  Rep.  312  (1907)  27,  99 


National  Wool  Growers  Assn.  vs.  ,  .    ,^ 

O    S.  Line  R.  R.  Co.  et  al.  22>  ICC  Rep.  151  (1912)        10,  14,  19 

31,   75.    109 

National    Lumber   Co.   vs. 

San   Pedro,    Los    Angeles    &    Salt 

Lake  R.   R.  Co.  15  ICC  Rep.  434  (1909)  147 

Nebraska-Iowa   Grain    Co.   vs. 

Union    Pacific    Rwy.   Co.  15  ICC  Rep.    90(1909)  8.-, 


Paducah   Cooperage   Co.  vs. 

N.  C.   &  St.   L.   Rwy.  Co.  22  ICC  Rep.  226  (1912)  93 

Pauls  Valley  Compress  &  Storage  Co. 

vs.  G.  C.  &  S.  F.  Rwy.  Co.  et  al.       13  ICC  Rep.  187  (1908)  89 

Piano   Milling  Co.  vs. 

St.  L.  S.  W.  Rwy.  Co.  et  al.  22  ICC  Rep.  360  (1912)  94 


Quimby,   S.  S.,  et  al.  vs. 

Maine  Central  R.  R.  Co.  et  al.  13  ICC  Rep.  246  (1908)  97 


—143- 


Railroad  Commission  of  Oregon  vs. 

O    R.   R.   &  Nav.  Co.  et  al.  23  ICC  Rep.  151  (1912)        10,  14,  19 

31,  75,  109 
Red    River   Oil   Co.  vs. 

Texas  &  Fac.   Rwy.  Co.  et  al.  23  ICC   Rep.  438  (1912)  12 

Roberts   Cotton   Oil   Co.  vs. 

111.   Cent.   R.   R.   Co.   et   al.  21  ICC  Rep.  248  (1911)  92 


St.   Louis   Hay  &  Grain   Co.  vs. 

C.  B.  &  Q.  R.  R.  Co.  et  al.               11   ICC  Rep.    82(1905)  25 

111.  Cent.  R.  R.  Co.  et  al.                   11  ICC  Rep.  486  (1905)  124,  125 

M.  &  O.  R.  R.  Co.  et  al.                    11  ICC  Rep.    90(1905)  42,  66,  67 

214  U.  S.  297  68,  81,  113 

M.   &   O.   R.    R.   et   al.                         19  ICC  Rep.  533  (1910)  75 

St.   Louis    Millers  Assn. 

In   Re                                                          1   ICC  Rep.    22(1887)  20 

St.    Louis   Traffic    Bureau   vs. 

C.  B.  &  O.   R.   R.  Co.  et  al.               14  ICC  Rep.  551  (1908)  13 

22  ICC  Rep.  496  (1912)  79 

62,  63 
82,  147 


Shiel  &  Co.  vs. 

III.   Cent.   R.   R.   Co.   et  al.  12  ICC  Rep.  210  (1907)        61,  62,  63 


Smith    &   Co.    Ltd.   vs. 

Oregon  Short  Line  R.  R.  Co.  et  al.     Unreported  opinion  670, 

(1912)  150 

Southern  Illinois  Millers  Assn.  vs. 

L.  &  N.  R.  R.  Co.  et  al.  21  ICC  Rep.  672  (,1912)  110,  158 

Southern   Railway   Co.   vs. 

St.  Louis   Hay  &   Grain   Oo.  214  U.  S.  297,  53  L.  ed. 

1004,  29  Sup.  Ct.  678 
(1909)  68 

Southwestern    Millers    League    vs. 
Atchinson,    Topeka    &    Santa    Fe 
Rwy.  et  al.  24  ICC  Rep.  552  (1912)  181 

Spiegle,  Geo.  M.,   &  Co.  et  al.  vs. 

Southern   Rwy.   Co.  19  ICC  Rep.  522  (1910)  105 

25  ICC  Rep.    71  (1912)  75 

State    Ex.    Infr.    Crow   vs. 

A.  T.  &  S.  F.  Rwy.  Co.  176  Mo.  687;  75  S.  W. 

776;  63  L.  R.  A.  761 
(1903)  24 

Stott   vs. 

Mich.   Cent.   R.   R.   Co.   et  al.  18  ICC  Rep.  582  (1910)  41,  103 

Substitution    of    Tonnage    at    Transit 

Pts.,   In   Re  18  ICC  Rep.  280  (1910)   156.  163.  164 

Sufiern    Grain    Co.   vs. 

111.  Cent.   R.   R.  Co.  et  al.  22  ICC  Rep.  178  (1911)  104 

Sunnyside   Coal   Mining  Co.  vs. 

D.  &  R.  G.  R.  R.  Oo.  ct  al.  16  ICC  Rep.  558  (1909)  146 


—144- 


Tap  Line  Case 
Tariff  Circular   18-A 


Through  Rates  and  Through  Routes 
In   Re 

Traffic  Bureau,  Merchants  Exchange 
of  St.  Louis  vs.  C.  B.  &  Q.  R.  R. 
Co.  et  al. 

Transit    Case — Original    Report 


Supplemental   Report 

Traugott   Schmidt   &  Sons  vs. 
Mich.   Cent.   R.   R.   Co.   et  al. 


23  ICC  Rep.  277  (1912) 


108 


Rule  No. 

10 

60 

Rule  No. 

67 

131,  132, 

133 

134, 

135 

Rule  No. 

74 

70,  118, 

121 

Rule  No. 

76 

154 

12  ICC  Rep.  163  (1907)     80,  128,  139 


14  ICC  Rep.  551  (1908)  13 

22  ICC  Rep.  496  (1912)  79 

24  ICC  Rep.  340(1912)     32,  160,  161 

165,  166,  167 

168,  170.  171 
172,  174,  175 
176,  177,  179 

180 

25  ICC  Rep.  130(1912)  142,  159,  162 

169,  173,  178 


19  ICC  Rep.  535  (1910) 


49 


Union    Pacific    R.   R.    Co.   vs. 
F.    H.    Peavey   &   Co. 

Union  Pacific  R.  R.  Co.  vs. 

Updike     Grain     Co.     &     Crowell 
Lumber  &  Grain  Co. 

Updike   Grain   Co.   vs. 

Union    Pacific   R.    R.   Co. 


222  U.  S.  42,  56  L.  ed. 

(1911)  13,28,30,77 


222  U.  S.  48,  52  L.  ed. 
(1911) 

15  ICC  Rep.    90(1909) 


86 
85 


Van   Natta  Bros,   et  al.  vs. 

C.  C.  C.  &  St.  L.  Rwy.  Co.  et  al.     23  ICC  Rep.      1  (1912) 


107 


Washer   Grain   Co.   vs. 
Mo.   Pac.   Rwy.   Co. 

Wichita,    Kansas   vs. 

A.  T.  &  S.  F.  Rwy.  Co.  et  al. 

Wood,    Mosaic    Flooring    &    Lumber 
Co.  vs.  L.  &  N.  R.  R.  Co. 


15  ICC  Rep.  147  (1909) 

9  ICC  Rep.  534(1903) 

22  ICC  Rep.  458(1912) 


28 
115 
149 


Young   &    Cutsinger   vs. 
L.  &  N.   R.  R.  Co. 


22  ICC  Rep.      1  (1911) 


148 


Act  to  Regulate  Commerce 

(Including  Interpretations  thereon  Pertaining  to 
Transit  Privileges) 


—147— 


ACT  TO  REGULATE  COMMERCE 

Approved  Feh.  4,  1887;  amended  March  2,  1889;  Feb.  10,  1891; 
Feb.  8,  1895 ;  June  29,  1906,  and  June  18,  1910. 

Be  it  enacted  by  the  Senate  and  the  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled, 

Section  1.  That  the  provisions  of  this  Act  shall  apply  to 
any  corporation  or  any  person  or  persons  engaged  in  the  trans- 
portation of  oil  or  other  commodity,  except  water  and  except 
natural  or  artificial  gas,  by  means  of  pipe  lines,  or  partly  by 
pipe  lines  and  partly  by  railroad,  or  partly  by  pipe  lines  and 
partly  by  water,  and  to  telegraph,  telephone  and  cable  com- 
panies (whether  wire  or  wireless)  engaged  in  sending  messages 
from  one  state,  territory  or  district  of  the  United  States,  to 
any  other  state,  territory  or  district  of  the  United  States,  or  to 
any  foreign  country,  who  shall  be  considered  and  held  to  be 
common  carriers  within  the  meaning  and  pui-pose  of  this  Act, 

and  to  any  common  carrier  or  carriers  en- 
Corporations  or  gaged  in  the  transportation  of  passengers  or 
^oTcT  ^"^^'''*  property  wholly  by  railroad   (or  partly  by 

railroad  and  partly  by  water,  when  both  are 
used  under  a  common  control,  management,  or  arrangement 
for  a  continuous  carriage  or  shipment),  from  one  State  or  Ter- 
ritory of  the  United  States  or  the  District  of  Columbia,  to  any 
other  State  or  Territory  of  the  United  States  or  the  District 
of  Columbia,  or  from  one  place  in  a  territorj'  to  another  place 
in  the  same  Territory,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country,  or  from  any  place  in  the  United 
States  through  a  foreign  country  to  any  other  place  in  the 
United  States,  and  also  to  the  transportation  in  like  manner 
of  property  shipped  from  any  place  in  the  United  States  to  a 
foreign  country  and  carried  from  such  phice  to  a  port  of  trans- 
shipment, or  shipped  from  a  foreign  country  to  any  place  in 


—148— 

the  United  States  and  carried  to  such  place  from  a  port  of 
entry  either  in  the  United  States  or  an  adjacent  foreign 
country:  Provided^  however,  That  the  provisions  of  this 
Act  shall  not  apply  to  the  transportation  of  passengers  or  prop- 
erty, or  to  the  receiving,  delivering,  storage,  or  handling  of 
property  wholly  within  one  State  and  not 
Intrastate  shipped  to  or  from  a  foreign  country  from 

Transportation.!  or  to  any  State  or  Territory  as  aforesaid, 

nor  shall  they  apply  to  the  transmission  of 
messages  by  telephone,  telegrapli  or  cable  wholly  within  one 
state  and  not  transmitted  to  or  from  a  foreign  country  from  or 
to  any  state  or  territory  as  aforesaid. 

The  term  "common  carrier"  as  used  in  this  Act  shall  in- 
clude express  companies  and  sleeping  car  companies.  The  term 
"railroad"  as  used  in  this  Act  shall  include  all  bridges  and  fer- 
ries used  or  operated  in  connection  with  any  railroad,  and  also 
all  the  road  in  use  by  any  corporation  operating  a  railroad, 
whether  owned  or  operated  under  a  con- 
Term  "Railroad"  tract,  agreement,  or  lease,  and  shall  also  in- 
Includes—  chide  all  switches,  spurs,  tracks  and  ter- 
minal facilities  of  every  kind  used  or  neces- 
sary in  the  transportation  of  the  persons  or  property  desig- 
nated herein,  and  also  all  freight  depots,  yards  and  grounds 

1  The  opinions  of  the  Federal  Courts  have  been  consonant  with  the 
rulings  of  the  Commission  as  to  what  traffic  is  under  the  jurisdiction  of 
the  Commission.  A  railroad  lying  wholely  within  the  state,  transacting 
business  solely  on  local  bills  of  lading,  limited  to  its  own  line,  and  not 
party  to  a  through  interstate  contract  of  transportation,  although  such 
business  originated  without  the  state,  is  not  within  the  purview  of  the  act 
and  not  required  to  make  reports  of  its  traffic  to  the  Federal  Commission. 
In  the  case  of  the  Goodrich  Transit  Company,  224  U.  S.,  194,  the  Supreme 
Court  decided,  sustaining  the  Commission,  and  reversing  the  Commerce 
Court,  that  Congress  did  not  exceed  its  power  under  the  commerce  clause 
by  enacting  the  act  of  February  4,  1887,  20,  as  amended  by  the  act  of  June 
2*9,  1906,  under  which  common  carriers  by  water  upon  the  Great  Lakes, 
engaged  in  the  transportation  of  passengers  and  property  partly  by  water, 
under  a  joint  arrangement  for  the  continuous  carriage  or  shipment,  may 
ibe  'required  by  the  Interstate  Commerce  Commission  to  adopt  a  uniform 
system  of  accounting  and  bookkeeping,  and  to  make  annual  reports,  which 
shall  embrace  not  only  the  joint  rail  and  water  business,  but  the  other 
;business  of  the  carriers  as  well,  such  as  their  port  to  port  business,  both 
intrastate  and  interstate. 

Subsequent  to  this  decision  the  Commission  in  the  Transit  Case  24. 
I.  C.  C.  Rep.,  340  (1912),  ruled  that  they  may  require  a  strict  accounting 
not  only  of  interstate  transit  and  non-transit  tonnage,  but  local  intrastate 
tonnage  as  well.     (Paragraph  32.) 


—149— 

used  or  necessary  in  the  transportation  or  delivery  of  any  of 
said   property;  and   the  term  "transporta- 
Term2  ^^  tion"  shall  include  cars  and  other  vehicles 

MeTns— °'^*^**°"  ^^^  ^^^  instrumentalities  and  facilities  of 

shipment  or  carriage,  irrespective  of  owner- 
ship or  of  any  contract,  express  or  implied,  for  the  use  thereof, 
and  all  services  in  connection  with  the  receipt,  delivery,  eleva- 
tion and  transfer  in  transit^  ventilation^  refrigeration  or  icing, 
storage  and  handling  of  property  transported;  and  it  shall  be 
the  duty  of  every  carrier  subject  to  the  provisions  of  this  Act 
to  provide  and  furnish  such  transportation  upon  reasonable 
request  therefor,  and  to  establish  through  routes  and  just  and 
reasonable  rates  applicable  thereto;  and  to  provide  reasonable 
facilities  for  operating  such  through  routes  and  to  make  rea- 
sonable rules  and  regulations  with  respect  to  the  exchange,  in- 
terchange and  return  of  cars  used  therein,  and  for  the  opera- 
tion of  such  through  routes,  and  providing  for  reasonable  com- 
pensation to  those  entitled  thereto. 

All  charges  made  for  any  service  rendered  or  to  be  ren- 
dered in  the  transportation  of  passengers  or  property  and  for 
the  transmission  of  messages  by  telegraph,  telephone  or  cable, 
as  aforesaid,  or  in  connection  therewith,  shall  be  just  and  rea- 
sonable; and  every  unjust  and  unreasonable  charge  for  such 
service  or  any  part  thereof  is  prohibited  and  declared  to  be  un- 
lawful: Provided,  that  messages  by  telegraph,  telephone  or 
cable,  subject  to  the  provisions  of  this  Act,  may  be  classified 
into  day,  night,  repeated,  unrepeated,  letter,  commercial,  press, 
government,  and  such  other  classes  as  are 
All  Charges  Shall  be  jnst  and  reasonable,  and  different  rates  may 
Re^asonable.3  ^^  charged  for  the  different  classes  of  mess- 

ages; and  provided  further,  that  nothing  in 
this  Act  shall  be  construed  to  prevent  telephone,  telegraph  and 

2  The  Supreme  Court  in  the  Dififenbaugh  and  Peavy  cases,  222  U.  S.. 
42  (1911),  decided  that  the  elevation  and  transfer  in  transit  of  grain  with 
such  storage  as  may  be  incidental  thereto  is  part  of  the  transportation 
service.  The  charges  therefor  must  be  pubHshed  in  like  manner  as  all 
other  charges  and  are  subject  to  the  same  restrictions  as  to  reasonableness, 
non-discriminatory  and  not  being  unduly  preferential. 

3  In  the  matter  of  charges  to  be  exacted  by  the  carrier  for  the  privi- 
lege of  allowing  commodities  to  be  stopped  in  transit,  the  Commission  orig- 
inally decided  that  the  charge  should  not  be  more  than  the  actual  cost  to 


—150—  

cable  companies   from   eiiteiinjj:  into   contracts    with   common 
carriers  for  the  exchange  of  services. 

And  it  is  hereby  made  the  duty  of  all  common  carriers 
subject  to  the  provisions  of  this  Act  to  establish,  observe  and 
enforce  jnst  and  reasonable  classifications  of  property  for  trans- 
portation, with  reference  to  which  rates,  tariffs,  regulations,  or 
practices  are  or  may  be  made  or  prescribed,  and  just  and  rea- 
sonable regulations  and  practices  affecting 
All  Classifications  classifications,  rates,  or  tariffs,  the  issuance, 
Reasonable*  ^"'^  ^^^^'^y  ^^^^^  sul>stance  of  tickets,  receipts,  and 
bills  of  lading,  the  manner  and  method  of 
presenting,  marking,  packing  and  delivering  property  for  trans- 
portation, the  facilities  for  transportation,  the  carrying  of  per- 
sonal, sample  and  excess  baggage,  and  all  other  matters  relat- 
ing to  or  connected  with  the  receiving,  handling,  transporting, 
storing  and  delivery  of  property  subject  to  the  provisions  of 
this  Act  which  may  be  necessary  or  proper  to  secure  the  safe 
and  prompt  receipt,  handling,  transportation  and  delivery  of 
propei-ty  subject  to  the  provisions  of  this  Act  upon  just  and  rea- 
sonable terms,  and  every  such  unjust  and  unreasonable  classi- 
fu-aiiou,  rer/uhition  and  pracficr  with  reference  to  commerce'^ 
between  the  states  and  with  foreign  countries  is  prohibited  and 
declared  to  be  unlawful. 

No  common  carrier  subject  to  the  provisions  of  this  Act 
shall,  after  January  first,  nineteen  hundred  and  seven,  directly 
or  indirectly,  issue  or  give  any  interstate  free  ticket,  free  pass, 
or  free  transportation  for  passengers,  except 
Free  Passes  to  its  employes  and  their  families,  its  offi- 

Prohibited.  cers,  agents,  surgeons,  physicians,  and  attor- 

neys at  law;  to  ministers  of  religion,  travel- 
ing secretaries  of  railroad  Young  Men's  Christian  Associations, 
inmates  of  hospitals  and  charitable  and  eleemosynary  institu- 
tions, and  persons  exclusively  engaged  in  charitable  and  elee- 
mosynary work;  to  indigent,  destitute,  and  homeless  persons, 

the  carrier.  The  Supreme  Court.  214  U.  S.  297,  later  decided  that  a  carrier 
which  is  at  service  and  expense  in  stopping  goods  in  transit,  for  inspection 
and  reloading  for  the  benefit  of  the  shipper,  is  entitled  to  compensation  m 
addition  to  the  actual  expense  incurred.  The  reasonableness  of  the  charge 
for  such  service  is  covered  under  caption  VITl.  Charges  for  Allowance 
of  Privilege. 

■i  See  Note  11.  pertaining  to  section  15,  page  169  infra. 


i:!^— 

and  to  such  persons  when  transported  by  charitable  societies 
or  hospitals,  and  the  necessary  agents  employed  in  such  trans- 
portation; to  inmates  of  the  National  Homes  or  State  Homes 
for  disabled  Volunteer  Soldiers,  and  of  Soldiers'  and  Sailors' 
Homes,  including  those  about  to  enter  and  those  returning  after 
discharged;  to  necessary  care  takers  of  live 
Exceptions  to  Free  stock,  poultry,  milk  and  fruit ;  to  employees 
Passes.  on  sleeping  cars,  express  cars,  and  to  line- 

men of  telegraph  and  telephone  companies ; 
to  Railway  Mail  Service  employees,  postoflfice  inspectors,  cus- 
toms inspectors,  and  immigration  inspectors;  to  newsboys  on 
trains,  baggage  agents,  witnesses  attending  any  legal  investi- 
gation in  which  the  common  carrier  is  interested,  persons  in- 
jured in  wrecks  and  physicians  and  nurses  attending  such  per- 
sons:   Provided,  That  this  provision  shall  not  be  construed  to 
prohibit  the  interchange  of  passes  for  the  officers,  agents  and 
employees  of  common  carriers,  and  their  families;  nor  to  pro- 
hibit any  common  carrier  from  carrying  passengers  free  with 
the  object  of  providing  relief  in  cases  of  general  epidemic, 
pestilence,  or  other  calamitous  visitation ;  and  pro\ided  further, 
that  this  provision  shall  not  be  construed  to  prohibit  the  privi- 
lege of  passes  or  franks,  or  the  exchange  thereof  with  each 
other,  for  the  ofticers,  agents,  employees,  and  their  families  of 
such   telegraph,   telephone  and   cable   lines,   and    the  officers, 
agents,  employees  and  their  families  of  other  common  carriers 
subject  to  the  provisions  of  this  Act.     Provided,  further.  That 
the  term  "employees"  as  used  in  this  paragraph  shall  include 
furloughed,  pensioned,  and  superannuated  employees,  persons 
who  have  become  disabled  or  infirm  in  the  service  of  any  such 
common  carrier,  and  the  remains  of  a  person  killed  in  the  em- 
ployment of  a  carrier  and  ex-employees  traveling  for  the  pur- 
pose of  entering  the  service  of  any  such  common  carrier;  and 
the  term  "families"  as  used  in  this  paragraph  shall  include  the 
families  of  those  persons  named  in  this  proviso,  also  the  fam- 
ilies of  persons  killed,  and  the  widows  during  widowhood  and 
minor  children  during  minority  of  persons  who  died,  while  in 
the  service  of  any  such  common  carrier.     Any  common  carrier 
violating  this  provision  shall  be  deemed  guilty  of  a  misde- 
meanor, and  for  each  offense,  on  conviction,  shall  pay  to  the 


—152— 

United  States  a  penalty  of  not  less  than  one  hundred  dollars 
nor  more  than  two  thousand  dollars,  and  any  person,  other 
than  the  persons  excepted  in  this  provision,  who  uses  any  such 
interstate  free  ticket,  free  pass,  or  free  transportation,  shall  be 
subject  to  a  like  penalty.  Jurisdiction  of  offenses  under  this 
provision  shall  be  the  same  as  that  provided  for  offenses  in  an 
Act  entitled  "An  Act  to  further  regulate  commerce  with  for- 
eign nations  and  among  the  States,"  approved  February  nine- 
teenth, nineteen  hundred  and  three,  and  any  amendment 
thereof. 

From  and  after  May  first,  nineteen  hundred  and  eight,  it 
shall  be  unlawful  for  any  railroad  company  to  transport  from 
any  State,  Territory,  or  the  District  of  Co- 
Transportation  of        lumbia,  to  any  other  State,  Territory,  or  the 
Commodities  Owned    District   of    Columbia,    or    to   anv    foreign 

by  Transportation  '  V,  ,, 

Companies.  country,    any   article   or   commodity,    other 

than  timber  and  the  manufactured  products 
thereof,  manufactured,  mined,  or  produced  by  it,  or  under 
its  authority,  or  w^hich  it  may  own  in  whole  or  in  part,  or  in 
which  it  may  have  any  interest,  direct  or  indirect,  except  such 
articles  or  commodities  as  may  be  necessary  and  intended  for 
its  use  in  the  conduct  of  its  business  as  a  common  carrier. 

Any  common  carrier  subject  to  the  provisions  of  this  Act, 
upon  application  of  any  lateral,  branch  line  of  railroad,  or  of 
any  shipper  tendering  interstate  traffic  for  transportation,  shall 
construct,  maintain,  and  operate    upon    reasonable    terms,    a 

switch  connection  with  any  such  lateral, 
Carriers  Shall  branch  line  of  railroad,  or  private  side  track 

Construct,  Maintain     ^.jji^.h  ^lav  be  constructed  to  connect  with 

and  Operate  Switch  '  ,.  • 

Connections.  its  railroad,  where  such  connection  is  rea- 

sonably practicable,  and  can  be  put  in  with 
safety  and  will  furnish  sufficient  business  to  justify  the  con- 
struction and  maintenance  of  the  same ;  and  shall  furnish  cars 
for  the  movement  of  such  traffic  to  the  best  of  its  ability  with- 
out discrimination  in  favor  of  or  against  any  such  shipper.  If 
any  common  carrier  shall  fail  to  install  and  operate  any  such 
switch  or  connection  as  aforesaid,  on  application  therefor  in 
"writing  by  any  shipper  or  owner  of  such  lateral,  branch  line 
of  railroad,  such  shipper  or  owner  of  such  lateral,  branch  line 


—153— 

of  railroad  may  make  complaint  to  the  Commission,  as  provided 
in  section  thirteen  of  this  Act,  and  the  Commission  shall  hear 
and  investigate  the  same  and  shall  determine  as  to  the  safety 
and  practicability  thereof  and  justification  and  reasonable  com- 
pensation therefor,  and  the  Commission  may  make  an  order  as 
provided  in  section  fifteen  of  this  Act,  directing  the  common 
carrier  to  comply  with  the  provisions  of  this  section  in  accord- 
ance with  snch  order,  and  such  order  shall  be  enforced  as  here- 
inafter provided  for  the  enforcement  of  all  other  orders  by  the 
Commission,  other  than  orders  for  the  payment  of  money. 

Section  2.  That  if  any  common  carrier  subject  to  the  pro- 
visions of  this  Act  shall,  directly  or  indirectly,  by  any  special 
rate,  rebate,  drawback,  or  other  device,  charge,  demand,  collect, 
or  receive  from  any  person  or  persons  a  greater  or  less  com- 
pensation for  any  service  rendered,  or  to  be  rendered,  in  the 
transportation  of  passengers  or  property,  subject  to  the  provi- 
sions of  this  Act,  than  it  charges,  demands,  collects,  or  receives 
from  any  other  person  or  persons  for  doing 
Unjust  5  for  him  or  them  a  like  and  contemporane- 

Discrimination  ^^^g  service  in  the  transportation  of  a  like 

Declared  to  Be 

Unlawful.  kind  of  traffic  under  substantially  similar 

circumstances  and  coaditions,  such  common 
carrier  shall  be  deemed  guilty  of  unjust  discrimination,  which 
is  hereby  prohibited  and  declared  to  be  unlaw^ful. 

5  Section  2  deals  with  discrimination  in  the  matter  of  rates,  and 
applies  therefore  more  strictly  to  discrimination  between  shippers  of  traf- 
fic similar  from  a  transportation  and  commercial  standpoint.  Section  3 
prohibits  unjust  discrimination  and  undue  and  unreasonable  preferences  or 
advantages  accorded  by  the  carriers  to  certain  favored  localities  or  between 
particular  kinds  of  traffic.  Therefore  under  the  prohibition  in  section  2 
the  carrier  in  granting  a  milling  in  transit  privilege  must  not  discriminate 
between  shippers  of  the  same  commoditj-.  This  matter  is  discussed  under 
caption  X,  pertaining  to  discrimination  between  shippers.  The  privilege 
when  allowed  must  be  extended  to  all  shippers  alike :  Shiel  &  Co.  vs.  I.  C. 
C.  R.  R.  Co.— 12  I.  C.  C.  Rep.,  210  (1907).  As  there  is  a  limit  however  to 
products  that  can  be  reasonably  milled  in  transit,  if  the  particular  product 
of  a  certain  raw  material  is  granted  transit  privilege  it  does  not  follow  that 
all  the  products  of  the  same  raw  material  must  be  accorded  the  transit 
privilege.  To  constitute  discrimination  in  the  ratings  of  a  particular  article 
the  elements  of  classification  must  be  similar — see  Douglas  &  Co.  vs.  C.  R. 
I.  &  P.  Rwy.  Co.,  16  I.  C.  C.  Rep.,  232  (1909),  where  the  Commission 
decided  that  a  carrier  may  withhold  the  transit  privilege  from  different 
products  of  the  same  raw  material  where  the  finished  products  and  the 
conditions  surrounding  the  commerce  or  transportation  thereof  are  dis- 
similar. 


—154-^ 

Section  3.  That  it  shall  be  unlawful  for  any  common  car- 
rier subject  to  the  provisions  of  this  Aet  to  make  or  give  any 
undue  or  unreasonable  preference  or  ad- 
Unreasonable  vantage  to  anv  particular  person,  company, 
To'ErunTawfuf ''"^  iii»i.  corporation,  or  locality,  ^  or  any  par- 
ticular description  of  traffic,  "'  in  any  respect 
whatsoever,  or  to  subject  any  particular  person,  company,  firm, 
corporation,  or  locality,  or  any  particular  description  of  traffic, 
to  any  undue  or  unreasonable  prejudice,  or  disadvantage  in 
any  respect  whatsoever.^ 

Every  common  carrier  subject  to  the  provisions  of  this 
Act  shall,  according  to  their  respective  powers,  afford  all  rea- 
sonable, proper,  and  equal  facilities  for  the  interchange  of  traf- 
fic between  their  respective  lines,  and  for  the  receiving,  forward- 
ing, and  delivering  of  passengers  and  property  to  and  from 
their  several  lines  and  those  connecting  therewith,  and  shall 
not  discriminate  in  their  rates  and  charges  between  such  con- 
necting lines;  but  this  shall  not  be  construed  as  requiring  any 

6  As  has  been  noted,  section  2  deals  principally  with  discrimination 
in  the  matter  of  freight  rates  on  like  commodities;  section  3  is  more  com- 
prehensive, in  that  it"  prohibits  unjust  discrimination  or  undue  or  unreason- 
able preference  to  any  particular  person,  locality  or  kind  of  trafik.  In  the 
case  of  Crews  vs.  Richmond  and  Danville  R.  R.  Co.,  1  1.  C.  C.  Rep.,  490 
(1887),  the  Commission  in  construing  this  section  questioned  the  legality 
of  a  carrier  granting  a  privilege  to  mill  a  commodity  in  transit  to  one  town 
on  its  line  and  denying  it  to  others.  They  refrained  however  from  ex- 
pressing an  opinion,  but  stated  that  the  concession  might  not  unlikely  be 
followed  by  litigation.  The  Commission  said  later  in  Koch  vs.  P.  R.  R.  Co. 
et  al.,  10  I.  C.  C^Rep.,  675  (1905),  that  the  granting  of  milling  in  transit 
privileges  to  one  territory  and  denying  such  privileges  to  another  territory 
is  not  necessarily  unlawful.  As  to  what  constitutes  undue  discrimination 
or  unreasonable' preference  between  shippers  and  localities,  see  caption 
X  and  XL 

7  In  the  matter  of  undue  preference  to  a  particular  description  of  traf- 
fic in  the  Hecker  Jones  Jewel  Milling  Co.  case,  14  I.  C.  C.  Rep.,  356  (1908), 
affirmed  168  Fed.  Rep.,  131,  (Paragraph  111),  the  Commission  decided  that 
complainant,  whose  mill  is  located  in  the  City  of  New  York,  is  not  entitled 
to  the  export  rate  upon  grain  from  the  west  which  it  grinds  into  export 
flour:  but  it  is  entitled  to  the  same  rate  upon  the  grain  which  it  subsequently 
grinds  into  export  flour  that  defendants  accord  to  interior  mills  upon  export 
flour.  In  other  words  it  was  unduly  preferential  to  accord  a  lower  rate  on 
the  finished  product  than  on  the  raw  material  out  of  which  the  flour  is 
made  for  export. 

8  Undue  preference  in  the  matter  of  allowances  for  the  elevation  of 
grain  in  transit  is  covered  by  the  Dififenbaugh  &  Peavy  cases,  222,  U.  S.,  42 
(191  n,  cited  in  paragraphs  28.  30  and  77. 


—155— 

such  common  carrier  to  give  the  use  of  its  tracks  or  terminal 
facilities  to  another  carrier  engaged  in  like  business. 

Section  4.  That  it  shall  be  unlawful  for  any  common 
carrier  subject  to  the  provisions  of  this  Act  to  charge  or  receive 
any  greater  compensation  in  the  aggregate  for  the  transporta- 
tion of  passengers,  or  of  like  kind  of  property,  for  a  shorter 
than  for  a  longer  distance  over  the  same  line 
Long  and  ^^^  route  in  the  same  direction,  the  shorter 

Short  Haul,  l)eing  included  within  the  longer  distance, 

or  to  charge  any  greater  compensation  as  a 
through  route  than  the  aggregate  of  the  intermediate  rates 
subject  to  the  provisions  of  this  Act ;  but  this  shall  not  be  con- 
strued as  authorizing  any  common  carrier  within  the  terms  of 
this  Act  to  charge  or  receive  as  great  compensation  for  a  shorter 
as  for  a  longer  distance:  Provided,  liowcver,  That  upon  appli- 
cation to  the  Interstate  Commerce  Commission  such  common 
carrier  may  in  special  cases  after  investigation  be  authorized 
by  the  Commission  to  charge  less  for  longer  than  for  shorter 
distances  for  the  transportation  of  passengers  or  property ;  and 
the  Commission  may  from  time  to  time  prescribe  the  extent  to 
which  such  designated  common  carrier  may  be  relieved  from 
the  operation  of  this  section :  Provided,  -further,  That  no  rates 
or  charges  lawfully  existing  at  the  time  of  the  passage  of  this 
amendatory  Act  shall  be  required  to  be  changed  by  reason  of 
the  provisions  lof  this  section  prior  to  the  expiration  of  six 
months  after  the  passage  of  this  Act,  nor  in  any  case  where  ap- 
plication shall  have  been  filed  before  the  Commission  in  accord- 
ance with  the  provisions  of  this  section,  until  a  determination  of 
such  application  by  the  Commission. 

Whenever  a  carrier  by  railroad  shall  in  competition  with 
a  water  route  or  routes  reduce  the  rates  on  the  carriage  of  any 
species  of  freight  to  or  from  competitive 
Water  Route.  points,  it  shall  not  be  permitted  to  increase 

such  rates  unless  after  hearing  by  the  Inter- 
state Commerce  Commission  it  shall  be  found  that  such  pro- 
posed increase  rests  upon  changed  conditions  other  than  the 
elimination  of  water  competition. 


—156— 

Section  5.    That  it  shall  b(^  unlawful  for  any  common  car- 
rier subject  to  the  provisions  of  this  act  to  enter  into  any  con- 
tract, agreement,  or  combination  with  any 
"Pooling  and  other  common  carrier    or    carriers    for   the 

Divisions."  pooling  of  freights  of  different  and  compet- 

ing railroads,  or  to  divide  between  them  the 
aggregate  or  net  proceeds  of  the  earnings  of  such  raili'oads, 
or  any  portion  thereof;  and  in  case  of  an  agreement  for  the 
pooling  of  freights  as  aforesaid,  each  day  of  its  continuance 
shall  be  deemed  a  separate  offense. 

Section  6.  That  every  common  carrier  subject  to  the  pro- 
visions of  this  Act  shall  file  with  the  Commission  created  by 
this  Act  and  print  and  keep  open  to  public  inspection  schedules 
showing  all  the  rates,  fares,  and  charges  for  transportation 
between  different  points  on  its  own  route  and  between  points 
on  its  own  route  and  points  on  the  route  of  any  other  carrier 
by  railroad,  by  pipe  line,  or  by  water  when  a  through  route 
and  joint  rate  have  been  established.  If  no  joint  rate  over  the 
through  route  has  been  established,  the  sev- 

Filing  and  eral  carriers  in  such  through  route  shall  file, 

Posting  Schedules  •    .  i  i  j  it*  j.- 

and  Rules.J>  print  and  keep  open  to  public  inspection,  as 

aforesaid,  the  separately  established  rates, 
fares,  and  charges  applied  to  the  through  transportation.  The 
schedules  printed  as  aforesaid  by  any  such  common  carrier 
shall  plainly  state  the  places  between  which  property  and  pas- 
sengers will  be  carried,  and  shall  contain  the  classification  of 
freight  in  force,  and  shall  also  state  separately  all  terminal 
charges,  storage  charges,  icing  charges,  and  all  other  charges 
which  the  Commission  may  require,  all  privileges  or  facilities 
granted  or  allowed  and  any  rules  or  regulations  which  in  any 
wise  change,  affect,  or  determine  any  part  or  the  aggregate  of 
such  aforesaid  rates,  fares,  and  charges,  or  the  value  of  the 
service  rendered  to  the  passenger,  shipper,  or  consignee.  Such 
schedules  shall  be  plainly  printed  in  large  type,  and  copies  for 
the  use  of  the  public  shall  be  kept  posted  in  two  public  and  con- 
spicuous places  in  every  depot,  station,  or  office  of  such  carrier 

^  This  section  was  substantially  rewritten  by  the  amendment  of  1906 — 
the  matter  of  publication  of  transit  privileges  is  embraced  under  section 
VII.     Publication  Condition  Precedent  to  Legality. 


—157— 

where  passengers  or  freight,  respectively,  are  received  for  trant«- 
portation,  in  such  form  that  they  shall  be  accessible  to  the  pub- 
lic and  can  be  conveniently  inspected.  The  provisions  of  this 
section  shall  apply  to  all  traffic,  transportation,  and  facilities 
defined  in  this  Act, 

Any  common  carrier  subject  to  the  provisions  of  this  Act 
receiving  freight  in  the  United  States  to  be  carried  through  a 
foreign  country  to  any  place  in  the  United  States  shall  also  in 
like  manner  print  and  keep  open  to  public  inspection,  at  every 
depot  or  office  where  such  freight  is  received  for  shipment, 
schedules  showing  the  through  rates  estalv 
Freight,  Foreign  Ushed  and  charged  by  such  common  carrier 
Country.  to  all   points  in  the  United   States  l>eyond 

the  foreign  country  to  which  it  accepts 
freight  for  shipment;  and  any  freight  shipped  from  the  United 
States  through  a  foreign  country  into  the  United  States  the 
through  rate  on  which  shall  not  have  been  made  public,  as  re- 
quired by  this  Act,  shall,  before  it  is  admitted  into  the  United 
States  from  said  foreign  country,  be  subject  to  customs  duties 
as  if  said  freight  Avere  of  foreign  production. 

Xo  change  shall  be  made  in  the  rates,  fares,  and  charges, 
or  joint  rates,  fares,  and  charges,  which  have  been  filed  and 
published  by  any  common  carrier  in  compliance  with  the  re- 
quirements of  this  section,  except  after  thirty  days'  notice  to 
the  Commission  and  to  the  public,  published  as  aforesaid,  which 
shall  plainly  state  the  changes  proposed  to 
j^TQtice.  ^e  made  in  the  schedule  then  in  force  and 

Chance  of  Rates.  the  time  when  the  changed  rates,  fares,  or 
charges  will  go  into  effect ;  and  the  proposed 
changes  shall  be  shown  by  printing  new  schedules,  or  shall  be 
plainly  indicated  upon  the  schedules  in  force  at  the  time  and 
kept  open  to  public  inspection:  Provided,  That  the  Commis- 
sion may,  in  its  discretion  and  for  good 
Commission  May  cause  shown,  allow  changes  upon  less  than 
Modify.  the  notice  herein  specified,  or  modify  the  re- 

quirements of  this  section  in  respect  to  pub- 
lishing, posting,  and  filing  of  tariffs,  either  in  particular  in- 
stances or  by  a  general  order  applicable  to  special  or  peculiar 
circumstances  or  conditions. 


—158— 

The  names  of  the  several  carriers  which  are  parlies  to  any 
joint  tariff  sliall  be  specified  therein,  and  each  of  the  parties 
thereto,  other  than  the  one  filing  the  same,  shall  file  with  the 
Commission   snch   evidence  of   concnrrence 
Joint  Tariffs.  therein  or  acceptance  thereof  as  may  be  re- 

quired or  approved  by  the  Commission,  and 
where  snch  evidence  of  concnrrence  or  acceptance  is  filed  it 
shall  not  be  necessary  for  the  carriers  filing  the  same  to  also 
file  copies  of  the  tariffs  in  which  they  are  named  as  parties. 
Every  common  carrier  subject  to  this  Act  shall  also  file 
with    said    Commission    copies    of   all    con- 
Copy  Contracts  tracts,   agreements,   or   arrangements   with 
to  Be  Filed.  other  common   cariiers   in   relation   to  any 
traflfic  affected  by  the  provisions  of  this  Act 
to  which  it  may  be  a  party. 

The  Commission  may  determine  and  pi-escribe  the  form  in 
which  the  schedules  required  by  this  section  to  be  kept  open  to 
public  inspection  shall  be  prepared  and  arranged  and  may 
change  the  form  from  tim(^  to  time  as  shall  be  found  expedient. 
No  carrier,  unless  otherwise  provided  by  this  Act,  shall 
engage  or  participate  in  the  transportation  of  passengers  or 
property,  as  defined  in  this  Act,  unless  the  rates,  fares,  and 
charges  upon  which  the  same  are  transported  by  said  carrier 
have  been  filed  and  published  in  accordance  w^ith  the  provisions 
of  this  Act ;  nor  shall  any  carrier  charge  or  demand  or  collect 
or  receive  a  greater  or  less  or  different  compensation  for  such 
transportation  of  passengers  or  property,  or 
Not  to  Deviate  i'»  fop  any  service  in  connection  therewith,  be- 
RatTs.^^^'^^^"^  tween'the  points  named  in  such  tariffs  than 

the  rates,  fares,  and  charges  which  are  spe- 
cified in  the  tariff  filed  and  in  effect  at  the  time;  nor  shall  any 
carrier  refund  or  remit  in  any  manner  or  by  any  device  any 
portion  of  the  rates,  fares,  and  charges  so  specified,  nor  extend 
to  any  shipper  or  person  any  privileges  or 
"Carrier."  facilities    in    the    transportation  of  passen- 

gers or  property,  except  such  as  are  spc^ci- 
fied    in    such    tariffs:     Provided,    That    wherever    the    w^ord 

Ti  Commission  has  decided  that  the  ^rantinc^  of  the  privilege  without 
publication  is  in  violation  of  the  act — see  caption  VII — Publication  Condi- 
tion precedent  to  lepality. 


__^ —159—  

"carrier"  occurs  in  this  Act  it  shall  be  held  to  mean  "common 
carrier." 

That  in  time  of  war  or  threatened  war  preference  and 
precedence  shall,  upon  the  demand  of  the 
War.  President  of  the  United   States,   be  given, 

over  all  other  traffic,  to  the  transportation 
of  troops  and  material  of  war,  and  carriers  shall  adopt  evei^y 
means  within  their  control  to  facilitate  and  expedite  the  mil- 
itary traffic. 

The  Commission  may  reject  and  refuse  to  file  any  schedule 

-,        .    .  that  is  tendered  for  filing  which  does  not 

Commission  .  n   ^  •  «   •.        /v. 

May  Reject  provide  and  give  lawful  notice  or  its  ettec- 

Schedule.  ^^^^  date,  and  any  schedule  so  rejected  by 

the  Commission  shall  be  void  and  its  use  shall  be  unlawful. 

In  case  of  failure  or  refusal  on  the  part  of  any  carrier,  re- 
ceiver, or  trustee  to  comply  with  the  terms  of  any  regulation 

adopted  and  promulgated  or  any  order  made 
Penalty.  by  the  Commission  under  the  provisions  of 

this  section,  such  carrier,  receiver,  or  trustee 
shall  be  liable  to  a  penalty  of  five  hundred  dollars  for  each 
such  offense,  and  twenty-five  dollars  for  each  and  every  day  of 
the  continuance  of  such  offense,  which  shall  accrue  to  the 
United  States,  and  may  be  recovered  in  a  civil  action  brought 
by  the  United  States, 

If  any  common  carrier  subject  to  the  provisions  of  this 
Act,  after  written  request  made  upon  the  agent  of  such  carrier 
hereinafter  in  this  section  referred  to,  by  any  person  or  com- 
pany for  a  written  statement  of  the  rate  or  charge  applicable 
to  a  described  shipment  between  stated  places  under  the  sched- 
ules or  tariffs  to  which  such  carrier  is  a  party,  shall  refuse  or 

omit  to  give  such  written  statement  within 
Refusal  or  a  reasonable  time,  or  shall  misstate  in  writ- 

RSl'Q°u"oIItions.         i»i?  the  applicable  rate,  and  if  the  person 

or  company  making  such  request  suffers 
damage  in  consequence  of  such  refusal  or  omission  or  in  con- 
sequence of  the  misstatement  of  the  rate,  either  through  making 
the  shipment  over  a  line  or  route  for  which  the  proper  rate  is 
higher  than  the  rate  over  another  available  line  or  route,  or 
through  entering  into  any  sale  or  other  contract  whereunder 


—160— 

such  person  or  company  oblig-atcs  himself  or  itself  to  make 
such  shipment  of  freight  at  liis  or  its  cost,  then  the  said  cari'ier 
shall  be  liable  to  a  penalty  of  two  hundred  and  fifty  dollars, 
which  shall  accrue  to  the  United  States  and  may  be  recovered 
in  a  civil  action  brought  by  the  United  States. 

It  shall  be  the  duty  of  every  carrier  by  railroad  to  keep 
at  all  times  conspicuously  posted  in  every  station  where  freight 
is  received  for  transportation  the  name  of 
Post  Name  ^^^  agent  resident  in  the  city,  village  or  town 
of  Agent.  where  such  station  is  located,  to  whom  ap- 
plication may  be  made  for  the  information 
by  this  section  required  to  be  furnished  on  written  request; 
and  in  case  any  carrier  shall  fail  at  any  time  to  have  such 
name  so  posted  in  any  station,  it  shall  be  sufdcient  to  address 
such  request  in  substantially  the  following  form:  "The  sta- 
tion agent  of  the company  at station," 

together  with  the  name  of  the  proper  postoffice,  inserting  the 
name  of  the  carrier  company  and  of  the  station  in  the  blanks, 
and  to  serve  the  same  by  depositing  the  request  so  addressed, 
with  postage  thereon  prepaid,  in  any  postoffice. 

Section  7.  That  H  shall  be  unlawful  for  any  common  car- 
rier subject  to  the  provisions  of  this  ar-t  to  enter  into  any  com- 
bination, contract,  or  agreement,  expressed  or  implied,  to  pre- 
vent, by  change  of  time  schedule,  carriage  in  different  cars,  or 
by  other  means  or  devices,  the  carriage  of 
Continuous  Freights,  freights  from  being  continuous  from  the 
place  of  shipment  to  the  place  of  destina- 
tion; and  no  break  of  bulk,  stoppage  or  interruption  made  by 
such  common  carrier  shall  prevent  the  carriage  of  freights  from 
being  and  being  treated  as  one  continuous  carriage  from  the 
place  of  shipment  to  the  place  of  destination,  unless  such  break, 
stoppage,  or  interruption  was  made  in  good  faith  for  some  nec- 
essary purpose,  and  without  any  intent  to  avoid  or  unneces- 
sarily interrupt  such  continuous  carriage  or  to  evade  auy  of 
the  provisions  of  this  Act, 

Section  8.     That  in  case  any  common  carrier  subject  to 
the  provisions  of  this  Act  shall  do,  cause  to  be  done,  or  permit 


—161— 

to  be  done,  any  act,  matter,  or  thinn^,  in  this  Act  prohibited 
or  declared  to  be  unlawful,  or  shall  omit  to  do  any  act,  matter, 
or  thing  in  this  Act  required  to  be  done,  such  common  carrier 
shall  be  liable  to  the  person  or  persons  in- 
Liability.  jured  thereby  for  the  full  amount  of  dam- 

ages sustained  in  consequence  of  any  such 
violation  of  the  provisions  of  this  Act,  together  with  a  reasona- 
ble counsel  or  attorney's  fee,  to  be  fixed  by  the  court  in  every 
case  or  recovery,  which  attorney's  fee  shall  be  taxed  and  col- 
lected as  part  of  the  costs  in  the  case. 

Section  9.  That  any  person  or  persons  claiming  to  be 
damaged  by  any  common  carrier  subject  to  the  provisions  of 
this  Act  may  either  make  complaint  to  the  Commission  as  here- 
inafter provided  for,  or  may  bring  suit  in  his  or  their  own  be- 
half for  the  recovery  of  the  damages  for  which  such  common 
carrier  may  be  liable  under  the  provisions  of  this  Act,  in  any 

district  or  circuit  court  of  the  United  States 
Election  of  ^f  competent  jurisdiction ;  but  such  person 

Remedies.  or  persons  shall  not  have  the  right  to  pursue 

both  of  said  remedies,  and  must  in  each  case 
elect  which  one  of  the  two  methods  of  procedure  herein  pro- 
vided for  he  or  they  will  adopt.  In  any  such  action  brought 
for  the  recovery  of  damages  the  court  before  which  the  same 
shall  be  pending  may  compel  any  director,  officer,  receiver, 
trustee,  or  agent  of  the  coi'poratiop.  or  company  defendant  in 
such  suit  to  attend,  appear,  and  testify  in  such  case,  and  may 
compel  the  production  of  the  books  and  papers  of  such  cor- 
poration or  company  party  to  any  such  suit ;  the  claim  that  any 
such  testimony  or  evidence  may  tend  to  criminate  the  person 
giving  such  evidence  shall  not  excuse  such  witness  from  testi- 
fying, but  such  evidence  or  testimony  shall  not  be  used  against 
such  person  on  the  trial  of  any  criminal  x^roceeding. 

Section  10.  That  any  common  carrier  subject  to  the  pro- 
visions of  this  Act,  or,  whenever  such  common  carrier  is  a  cor- 
poration, any  director  or  officer  thereof,  or  any  receiver,  trus- 
tee, lessee,  agent,  or  person  acting  for  or  employed  by  such 
corporation,  who,  alone  or  with  any  other  corporation,  com- 


—162— 

pany,  person,  or  party,  shall  willfully  do  or  cause  to  bd'  done, 
or  shall  willingly  suffer  or  permit  to  be  done,  any  act,  matter 
thins:  in  this  Act  prohibited  or  declared  to 
Penalties.  ^''  uii lawful,  oi'  wlio  shall  aid  or  abet  there- 

Corporation,  ill,  or  shall  wilfully  omit  or  fail  to  do  any 

act,  matter,  or  thino-,  in  this  Act  required 
to  be  done,  or  shall  cause  or  willinjrly  suffer  or  permit  any 
act,  matter,  or  thing  so  directed  or  required  by  this  Act  to  be 
done  not  to  be  so  done,  or  shall  aid  or  abet  any  such  omission 
or  failure,  or  shall  be  guilty  of  any  infraction  of  this  Act  for 
which  no  penalty  is  otherwise  provided,  or  who  shall  aid  or 
abet  therein,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall,  upon  conviction  thereof  in  any  district  court  of  the 
United  States  within  the  jui-isdiction  of  which  such  offense 
was  committed,  be  subject  to  a  fine  of  not  to  exceed  five  thou- 
sand dollars  for  each  offense:  Provided.  That  if  the  offense 
for  which  any  person  shall  be  convicted  as  aforesaid  shall  be 
an  unlawful  discrimination  in  rates,  fares,  or  charges  for  the 
transportation  of  passengers  or  property,  such  person  shall,  in 
addition  to  the  fine  hereinbefore  provided  for,  be  liable  to  im- 
prisonment in  the  penitentiary  for  a  term  of  not  exceeding  two 
years,  or  both  such  fine  and  imprisonment,  in  the  discretion 
of  the  court. 

Any  common  carrier  subject  to  the  provisions  of  this  Act, 
or,  whenever  such  common  carrier  is  a  corporation,  any  oiYi- 
cers  or  agent  thereof,  or  any  persons  acting  for  or  employed 
by  such  corporation,  who,,  by  means  of  false  billing,  false  classi- 
fication, false  weighing,  or  false  report  of 
Penalty  for  weight,  or  by  any  other    device    or    means. 

False  Billing.  shall    knowingly    and    willfully    assist,    or 

shall  willingly  suffer  or  permit,  any  person 
or  persons  to  obtain  transportation  for  property  at  less  than 
the  regular  rates  then  established  and  in  force  on  the  line  of 
transportation  of  such  common  carrier,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  shall,  upon  conviction  thereof  in  any 
court  of  the  X"''nited  States  of  competent  jurisdiction  within  the 
district  in  which  such  offense  Avas  committed,  be  subject  to  a 
fine  of  not  exceeding  five  thousand  dollars,  or  imprisonment  in 


—163— 

the  penitentiary  for  a  term  of  not  exceeding  two  years,  or  both, 
in  the  discretion  of  the  court,  for  each  offense. 

Any  person,  corporation,  or  company,  or  any  agent  or  offi- 
cer thereof,  who  shall  deliver  property  for  transportation  to 
any  common  carrier  subject  to  the  provisions  of  this  Act,  or 
for  whom,  as  consignor  or  consignee,  any  such  carrier  shall 
transport  property,  who  shall  knowingly  and  willfully,  direct- 
ly or  indirectly,  himself  or  by  employee,  agent,  officer,  or  other- 
wise, by  false  billing,  false  classification,  false  weighing,  false 
representation  of  the  contents  of  the  package  or  the  substance 
of  the  property,  false  report  of  weight,  false  statement,  or  by 
any  other  device  or  means,  whether  with  or  without  the  con- 
sent or  connivance  of  the  carrier,  its  agent,  or  officer,  obtain  or 
attempt  to  obtain  transportation  for  such  property  at  less  than 
the  regular  rates  then  established  and  in  force  on  the  line  of 
transportation ;  or  who  shall  knowingly  and  willfully,  directly 
or  indirectly,  himself  or  by  employee,  agent,  officer,  or  other- 
wise, by  false  statement  or  representation  as  to  cost,  value, 
nature,  or  extent  of  injury,  or  by  the  use  of  any  false  bill,  bill 
of  lading,  receipt,  voucher,  roll,  account,  claim,  certificate,  affi- 
davit, or  deposition,  knowing  the  same  to  be  false,  fictitious, 
or  fraudulent,  or  to  contain  any  false,  fictitious,  or  fraudulent 
statement  or  entry,  obtain  or  attempt  to  obtain  any  allowance, 
refund,  or  payment  for  damage  or  otherwise  in  connectioii  with 
or  growing  out  of  the  transportation  of  or  agreement  to  trans- 
port such  property,  whether  with  or  without  the  consent  or 
connivance  of  the  carrier,  whereby  the  compensation  of  such 
carrier  for  such  transportation,  either  before  or  after  payment, 
shall  in  fact  be  made  less  than  the  regular  rates  then  estab- 
lished  and   in   force   on   the   line   of   transportation,   shall    be 
deemed  guilty  of  fraud,  which  is  hereby  declared  to  be  a  mis- 
demeanor, and  shall,  upon  conviction  thereof  in  any  court  of 
the  United  States  of  competent  jurisdiction  within  the  district 
in  which  such  offense  was  wholly  or  in  part  committed,  be  sub- 
ject for  each  offense  to  a  fine  of  not  exceeding  five  thousand 
dollars  or  imprisonment  in  the  penitentiary  for  a  term  of  not 
exceeding  two  years,  or  both,  in  the  discretion  of  the  court: 
Provided,  That  the  penalty  of  imprisonment  shall  not  apply  to 
artificial  persons. 


—164— 

If  any  such  person,  or  any  officer  or  agent  of  any  such 
corporation  or  company,  shall,  by  payment  of  money  or  other 
thing  of  value,  solicitation,  or  otherwise,  induce  or  attempt  to 
induce  any  common  carrier  subject  to  the  provisions  of  this 
Act,  or  any  of  its  officers  or  agents,  to  discriminate  unjustly 
in  his,  its,  or  their  favor  as  against  any 
Penalty  for  Other  consignor  or  consignee  in  the  trans- 

Discrimination,  portation  of  property,  or  shall  aid  or  abet 

any  common  carrier  in  any  such  unjust  dis- 
crimination, such  person  or  such  officer  or  agent  of  such  cor- 
poration or  company  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall,  upon  conviction  thereof  in  any  court  of  the  United 
States  of  competent  jurisdiction  within  the  district  in  which 
such  offense  was  committed,  be  subject  to  a  fine  of  not  exceed- 
ing five  thousand  dollars,  or  imprisonment  in  the  penitentiary 
for  a  term  of  not  exceeding  two  years,  or  both,  in  the  discre- 
tion of  the  court,  for  each  offense;  and  such  person,  corpora- 
tion, or  company  shall  also,  together  with  said  common  car- 
rier, be  liable,  jointly  or  severally,  in  an  action  to  be  brought 
by  any  consignor  or  consignee  discriminated  against  in  any 
court  of  the  United  States  of  competent  jurisdiction  for  all 
damages  caused  by  or  resulting  therefrom. 

Section  11.  That  a  commission  is  hereby  created  and 
established,  to  be  known  as  the  Interstate  Commerce  Commis- 
sion, which  shall  be  composed  of  five  Commissioners,  who  shall 

be  appointed  by  the  President,  by  and  with 
Commission  the  advice  and  consent  of  the  Senate.     The 

Appointment.  Commissioners   first   appointed    under    this 

Act  shall  continue  in  office  for  the  term  of 
two,  three,  four,  five  and  six  years,  respectively,  from  the  first 
day  of  January,  Anno  Domini  eighteen  hundred  and  eighty- 
seven,  the  term  of  each  to  be  designated  by  the  President;  but 
their  successors  shall  be  appointed  for  terms  of  six  years,  ex- 
cept that  any  person  chosen  to  fill  a  vacancy  shall  be  appointed 
only  for  the  unexpired  time  of  the  Commissioner  whom  he 
shall  succeed.  Any  Commissioner  may  be  removed  by  the 
President  for  inefficiency,  neglect  of  duty,  or  malfeasance  in 
office.  Not  more  than  three  of  the  Commissioners  shall  be  ap- 
pointed from  the  same  political  party.     No  person  in  the  em- 


—165— 

ploy  of  or  holding  any  official  relation  to  any  common  carrier 
subject  to  the  provisions  of  this  Act,  or  owning  stock  or  bonds 
thereof,  or  who  is  in  any  manner  pecuniarily  interested  therein, 
shall  enter  upon  the  duties  of  or  hold  such  office.  Said  Com- 
missioners shall  not  engage  in  any  other  business,  vocation,  or 
employment.  No  vacancy  in  the  Commission  shall  impair  the 
right  of  the  remaining  Commissioners  to  exercise  all  the  powers 
of  the  Commission. 

Section  12.  That  the  Commission  hereby  created  shall 
have  authority  to  inquire  into  the  management  of  the  business 
of  all  common  carriers  subject  to  the  provisions  of  this  Act, 
and  shall  keep  itself  informed  as  to  the  manner  and  method 
in  which  the  same  is  conducted  and  shall 
Powers  and  Duties  ^^^^  the  right  to  obtain  from  such  common 
of  Commission.  carriers  full  and  complete  information  nec- 

essary to  enable  the  Commission  to  perform 
the  duties  and  carry  out  the  objects  for  which  it  was  created; 
and  the  Commission  is  hereby  authorized  and  required  to  ex- 
ecute and  enforce  the  provisions  of  this  Act;  and,  upon  the 
request  of  the  Commission,  it  shall  be  the  duty  of  any  district 
attorney  of  the  United  States  to  whom  the  Commission  may 
apply  to  institute  in  the  proper  court  and  to  prosecute  under 
the  direction  of  the  Attorney  General  of  the  United  States  all 
necessary  proceedings  for  the  enforcement  of  the  provisions  of 
this  Act  and  for  the  punishment  of  all  violations  thereof,  and 
the  costs  and  expenses  of  such  prosecution  shall  be  paid  out 
of  the  appropriation  for  the  expenses  of  the  courts  of  the 
United  States;  and  for  the  purposes  of  this  Act  the  Commis- 
sion shall  have  power  to  require,  by  subpoena,  the  attendance 
and  testimony  of  witnesses  and  the  production  of  all  books, 
papers,  tariffs,  contracts,  agreements,  and  documents  relating 
to  any  matter  under  investigation. 

Such  attendance  of  witnesses,  and  the  production  of  such 
documentary  evidence,  may  be  required  from  any  place  in  the 
United  States,  at  any  designated  place  of 
Witnesses.  hearing.     And  in  case  of  disobedience  to  a 

subpoena  the  Commission,  or  any  party  to 
a  proceeding  before  the  Commission,  may  invoke  the  aid  of  any 
court  of  the  United  States  in  requiring  the  attendance  and 


^ —166— 

testimony  of  witnesses  and   the  prodnetion  of  books,  papers, 
and  documents  under  the  provisions  of  this  section. 

And  any  of  the  circuit  courts  of  the  United  States  within 
the  jurisdiction  of  which  such  inquiry  is  carried  on  may,  in 
case  of  contumacy  or  refusal  to  obey  a  subpoena  issued  to  any 
common  carrier  subject  to  the  provisions  of  this  Act,  or  other 
person,  issue  an  order  requiring:  such  common  carrier  or  other 
person  to  appear  before  said  Commission  (and  produce  books 
and  papers  if  so  ordered)  and  give  evidence  touching  the  mat- 
ter in  question;  and  any  failure  to  obey  such  order  of  the  court 
may  be  punished  by  such  court  as  a  contempt  thereof.  The 
claim  that  any  such  testimony  or  evidence  may  tend  to  crim- 
inate the  person  giving  such  evidence  shall  not  excuse  such 
witness  from  testifying;  but  such  evidence  or  testimony  shall 
not  be  used  against  such  person  on  the  trial  of  any  criminal 
proceeding. 

The  testimony  of  any  witness  may  be  taken,  at  the  in- 
stance of  a  party  in  any  proceeding  or  investigation  depend- 
ing before  the  Commission,  by  deposition,  at  any  time  after 
a  cause  or  proceeding  is  at  issue  on  petition  and  answer.  The 
Commission  may  also  order  testimony  to  be  taken  by  deposi- 
tion in  any  proceeding  or  investigation 
Testimony,  ponding  before  it,  at  any  stage  of  such  pro- 

Deposition,  eroding  or  investigation.     Such  depositions 

may  be  taken  before  any  judge  of  any  court 
of  the  United  States,  or  any  commissioner  of  a  circuit,  or  any 
clerk  of  a  district  or  circuit  court,  or  any  chancellor,  justice, 
or  judge  of  a  supreme  or  superior  court,  mayor  or  chief  magis- 
trate of  a  city,  judge  of  a  county  court,  or  court  of  common 
pleas  of  any  of  the  United  States,  or  any  notary  public,  not 
being  of  counsel  or  attorney  to  either  of  the  parties,  nor  inter- 
ested in  the  event  of  the  proceeding  or  investigation.  Reason- 
able notice  must  first  be  given  in  writing  by  the  party  or  his 
attorney  proposing  to  take  such  deposition  to  the  opposite 
party  or  his  attorney  of  record,  as  either  may  bo  nearest,  which 
notice  shall  state  the  name  of  the  witness  and  the  time  and 
place  of  the  taking  of  his  deposition.  Any  person  may  be  com- 
pelled to  appear  and  depose,  and  to  produce  documentary  evi- 
dence, in  the  same  manner  as  witnesses  may  be  compelled  to 


—167—     

appear  and  testify  and  produce  documentary  evidence  before 
the  Commission  as  hereinbefore  provided. 

Every  person  deposing  as  herein  provided  shall  be  cau- 
tioned and  sworn  (or  affirm,  if  he  so  request)  to  testify  the 
whole  truth,  and  shall  be  carefully  examined.  His  testimony 
shall  be  reduced  to  writing  by  the  magistrate  taking  the  deposi- 
tion, or  under  his  direction,  and  shall,  after  it  has  been  reduced 
to  writing,  be  subscribed  by  the  deponent. 

If  a  witness  whose  testimony  may  be  desired  to  be  taken 
by  deposition  be  in  a  foreign  country,  the  deposition  may  be 
taken  before  an  officer  or  person  designated 
Witnecs,  Foreign  ^'y  ^^-  Commission,  or  agreed  upon  by  the 
Country.  parties  by  stipulation  in  writing  to  be  filed 

with  the  Commission.  All  depositions  must 
be  promptly  filed  with  the  Commission. 

Witnesses  whose  depositions  are  taken  pursuant  to  this 
act,  and  the  magistrate  or  other  officer  taking  the  same,  shall 
severally  be  entitled  to  the  same  fees  as  are  paid  for  like  serv- 
ices in  the  courts  of  the  United  States. 

Section  13.  That  any  person,  firm,  corporation,  company, 
or  association,  or  any  mercantile,  agricultural,  or  manufactur- 
ing society,  or  other  organization,  or  any  body  politic  or  muni- 
cipal organization,  or  any  common  carrier,  complaining  of  any- 
thing done  or  omitted  to  be  done  by  any  common  carrier  sub- 
ject to  the  provisions  of  this  Act,  in  contravention  of  the  pro- 
visions thereof,  may  apply  to  said   Commission  by  petition, 

which  shall  briefly  state  the  facts;  where- 
Comolaints  to  upon  a  statement  of  the  complaint  thus  made 

Commission.  shall    be    forwarded    by    the    Commission 

to  such  common  carrier  who  shall  be  called 
upon  to  satisfy  the  complaint,  or  to  answer  the  same  in  writing, 
within  a  reasonable  time,  to  be  specified  by  the  Commission.  If 
such  common  carrier  within  the  time  specified  shall  make 
reparation  for  the  injury  alleged  to  have  been  done,  the  common 
carrier  shall  be  relieved  of  liability  to  the  complainant  only  for 
the  particular  violation  of  the  law  thus  complained  of.  If  such 
carrier  or  carriers  shall  not  satisfy  the  complainant  within  the 
time  specified,  or  there  shall  appear  to  be  any  reasonable  ground 


—168— 

for  investifjatino-  said  complaint,  it  shall  bo  the  duty  of  the  Com- 
mission to  iuvesti<i;ate  the  matters  complained  of  in  snch  manner 
and  by  such  means  as  it  shall  deem  proper. 

Said  commission  shall,  in  like  manner,  and  with  the  same 
authority  and  powers,  investigate  any  complaint  forwarded  by 
the  railroad  commissioner  or  railroad  commission  of  any  State 
or  Territory  at  the  request  of  such  commissioner  or  commis- 
sion, and  the  Interstate  Commerce  Commission  shall  have  full 
authority  and  power  at  any  time  to  institute  an  inquiry,  on  its 
own  motion,  in  any  case  and  as  to  any  matter  or  thing  concern- 
ing which  a  complaint  is  authorized  to  be  made,  to  or  before  said 
Commission  by  any  provision  of  this  act,  or 
Orders  of  Concerning  which  any  question  may  arise 

Commission.  under  any  of  the  provisions  of  this  Act,  or  re- 

lating to  the  enforcement  of  any  of  the  pro- 
visions of  this  act.  And  the  said  Commission  shall  have  the 
same  powers  and  authority  to  proceed  with  any  inquiry  in- 
stituted on  its  own  motion  as  though  it  had  been  appealed  to 
by  complaint  or  petition  under  any  of  the  provisions  of  this 
Act,  including  the  power  to  make  and  enforce  any  order  or 
orders  in  the  case,  or  relating  to  the  matter  or  thing  concern- 
ing which  the  inquiry  is  had,  excepting  orders  for  the  payment 
of  money.  No  complaint  shall  at  any  time  be  dismissed  be- 
cause of  the  absence  of  direct  damage  to  the  complainant. 

Section  14.  That  whenever  an  investigation  shall  be  made 
by  said  Commission,  it  shall  be  its  duty  to  make  a  report  in 
writing  in  respect  thereto,  which  shall  state 
Report.  the  conclusions  of  the  Commission,  together 

with  its  decision,  order,  or  requirement  in 
the  premises;  and  in  case  damages  are  awarded  such  report 
shall  include  the  findings  of  fact  on  which  the  award  is  made. 

All  reports  of  investigations  made  by  the  Commission  shall 
be  entered  of  record  and  a  copy  thereof  shall  be  furnished  to 
the  party  who  may  have  complained,  and  to  any  common  car- 
rier that  may  have  been  complained  of. 

The  Commission  may  provide  for  the  publication  of  its 
reports  and  decisions  in  such  form  and  manner  as  may  be  best 
adapted  for  public  information  and  use,  and  such  authorized 


—169— 

publications  shall  be  competent  evidence  of  the  reports  and 
decisions  of  the  Commission  therein  contained  in  all  courts  of 
the  United  States  and  of  the  several  States  without  any  further 
proof  or  authentication  thereof.  The  Commissiou  may  also 
cause  to  be  printed  for  early  distribution  its  annual  reports. 

Section  15.     That   whenever,  after  full  hearing  upon  a 

complaint  made  as  provided  in  section  thirteen  of  this  Act,  or 

after  full  hearing  under  an  order  for  investigation  and  hearing 

made  by  the  Commission  on  its  own  initia- 

Rates  to  Be  tlvc    (either   in   extension   of  any   pending 

Determined  and  complaint  or  without  aiiY  complaint  what- 

I^rcscriDCQ  bv  ^  ,    • 

Commission.  ever),  the  Commission  shall  be  of  opinion 

that  any  individual  or  joint  rates  or  charges 
whatsoever  demanded,  charged,  or  collected  by  any  common 
carrier  or  carriers  subject  to  the  provisions  of  this  Act  for  the 
transportation  of  persons  or  property  or  for  the  transmission 
of  messages  by  telegraph  or  telephone  as  defined  in  the  first 
section  of  this  Act,  or  that  any  individual  or  joint  classifica- 
tions, regulations,  or  practices  whatsoever  of  such  carrier 
or  carriers  subject  to  the  provisions  of  this  Act,  are 
unjust  or  unreasonable  or  unjustly  discriminatory,  or 
unduly  preferential  or  prejudicial  or  otherwise  in  viola- 
tion of  any  of  the  provisions  of  this  Act,  the  Com- 
mission is  hereby  authorized  and  empowered  to  determine  and 
prescribe  what  will  be  the  just  and  reasonable  individual  or 
joint  rate  or  rates,  charge  or  charges,  to  be  thereafter  observed 
in  such  case  as  the  maximum  to  be  charged,  and  what  indi- 
vidual or  joint  classification,  regulation  or  practice  ^^  is  just, 
fair  and  reasonable,  to  be  thereafter  followed,  and  to  make  an 

11  In  the  wool  case,  23  I.  C.  C.  Rep.,  151  (1912),  (Paragraph  31),  the 
Commission  construed  this  provision  as  amended  by  the  Act  of  1906  as 
investing  in  the  Commission  full  authority  over  interstate  rates  and  what- 
ever regulation  or  practices  entered  into  those  rates  and  determined  their 
value  and  availability  to  individuals  or  communities;  holding  that  transit  is 
a  practice  or  regulation  included  within  the  provision  of  the  fifteenth  sec- 
tion over  whichthe  Commission  has  jurisdiction  and  that  they  rnay  require 
carriers  to  accord  that  privilege.  As  was  said  by  the  Commission  (Para- 
graph 23) — there  can  be  no  question  as  to  the  right  and  power  of  the  Com- 
mission to  order  t'he  removal  of  an  unjust  discrimination  and  to  prescribe 
such  reasonable  rate  and  regulation  as  will  effect  such  removal. 


—170— 

order  that  the  carrier  or  carriers  shall  cease  and  desist  from 
such  violation  to  the  extent  to  which  the  Commission  finds  the 
same  to  exist,  and  shall  not  thereafter  publish,  demand,  or  col- 
lect any  rate  or  charge  for  such  transporta- 
Individual  or  Joint      tlou  or  transmission  in  excess  of  the  max- 

Det!l^nS"whl°t"       ^"^"^  ^^^  ^^  charge  so  prescribed,  and  shall 
Reasonable.  t'dopt  the  classification  and  shall  conform  to 

and  obserre  the  regulation  or  practice  so  de- 
scribed. All  orders  of  the  Commission,  except  orders  for  the 
payment  of  money,  shall  take  effect  -within  such  reasonable 
time,  not  less  than  thirty  days,  and  shall  continue  in  force  for 
such  period  of  time,  not  exceeding  two  years,  as  shall  be  pre- 
scribed in  the  order  of  the  Commission,  unless  the  same  shall 
be  suspended  or  modified  or  set  aside  by  the  Commission,  or 
be  suspended  or  set  aside  by  a  court  of  competent  jurisdiction. 
Whenever  the  carrier  or  carriers,  in  obedience  to  such  order  of 
the  Commission  or  otherwise,  in  respect  to  joint  rates,  fares,  or 
charges,  shall  fail  to  agree  among  themselves  upon  the  appor- 
tionment or  division  thereof  the  Commission  may,  after  hear- 
ing, make  a  supplemental  order  prescribing  the  just  and  rea- 
sonable proportion  of  such  joint  rate  to  be  received  by  each 
carrier  party  thereto,  which  order  shall  take  effect  as  a  part  of 
the  original  order. 

Whenever  there  shall  be  filed  with  the  Commission  any 
schedule  stating  a  new  individual  or  joint  rate,  fare,  or  charge, 
or  any  new  individual  or  joint  classification,  or  any  new  indi- 
vidual or  joint  regulation  or  practice  affecting  any  rate,  fare, 
or  charge,  the  Commission  shall  have,  and  it  is  hereby  given, 

authority,  either  upon  complaint  or  upon 
Commission  May         its    own    initiative    without    complaint,    at 

Suspend  Operation  n.j.".j^  i  .,,        , 

of  New  Schedule.  once,  and  if  it  SO  orders,  without  answer  or 
other  formal  pleading  by  the  interested  car- 
rier or  carriers,  but  upon  reasonable  notice,  to  enter  upon  a 
hearing  concerning  the  propriety  of  such  rate,  fare,  charge, 
classification,  regulation,  or  practice;  and  pending  such  hear- 
ing and  the  decision  thereon  the  Commission  upon  filing  with 
such  schedule  and  delivering  to  the  carrier  or  carriers  affected 
thereby  a  statement  in  writing  of  its  reasons  for  such  suspen- 


—171— 

sion  may  suspend  the  operation  of  such  schedule  and  defer  the 
use  of  such  rate,  fare,  charge,  classification,  regulation,  or 
practice,  but  not  for  a  longer  period  than  one  hundred  and 
twenty  days  beyond  the  time  when  such  rate,  fare,  charge, 
classification,  regulation,  or  practice  would  otherwise  go  into 
effect;  and  after  full  hearing,  whether  completed  before  or  after 
the  rate,  fare,  charge,  classification,  regulation,  or  practice  goes 
into  effect,  the  Commission  may  make  such  order  in  reference 
to  such  rate,  fare,  charge,  classification,  regulation,  or  practice 
as  would  be  proper  in  a  proceeding  initiated  after  the  rate, 
fare,  charge,  classification,  regulation,  or  practice  had  become 
effective;  provided,  that  if  any  such  hearing  cannot  be  con- 
cluded within  the  period  of  suspension,  as  above  stated,  the 
Interstate  Commerce  Commission  may,  in  its  discretion,  extend 
the  time  of  suspension  for  a  further  period  not  exceeding  six 
months.  At  any  hearing  involving  a  rate  increased  after  Jan- 
uary first,  nineteen  hundred  and  ten,  or  of  a  rate  sought  to  be 
increased  after  the  passage  of  this  Act,  the  burden  of  proof  to 
show  that  the  increased  rate  or  proposed  increased  rate  is  just 
and  reasonable  shall  be  upon  the  common  carrier,  and  the  Com- 
mission shall  give  to  the  hearing  and  decision  of  such  questions 
preference  over  all  other  questions  pending  before  it  and  decide 
the  same  as  speedily  as  possible. 

The  Commission  may  also,  after  hearing,  on  a  complaint 
or  upon  its  own  initiative  without  complaint,  establish  through 
routes  and  joint  classifications  and  may  establish  joint  rates  as 
the  maximum  to  be  charged  and  may  prescribe  the  division  of 
such  rates  as  hereinbefore  provided  and  the  terms  and  condi- 
tions under  w^hich  such  through  routes  shall  be  operated,  when- 
ever the  carriers  themselves  shall  have  re- 
Through  Routes  fused  or  neglected  to  establish  voluntarily 
and  Classifications.  sucli  through  routes  or  joint  classifications 
or  joint  rates;  and  this  provision  shall  ap- 
ply when  one  of  the  connecting  carriers  is  a  water  line.  The 
Commission  shall  not,  however,  establish  any  through  route, 
classification,  or  rate  between  street  electric  passenger  railways 
not  engaged  in  the  general  business  of  transporting  freight  in 
addition  to  their  passenger  and  express  business  and  railroads 


—172— 

of  a  different  character,  nor  shall  the  Commission  have  the 
right  to  establish  any  route,  classilication,  rate,  fare,  or  charge, 
when  the  transportation  is  wholly  by  water,  and  any  transpor- 
tation by  water  affected  by  this  act  shall  be  subject  to  the  laws 
and  regulations  applicable  to  transportation  by  water. 

And  in  establishing  such  through  route,  the  Commission 
s-hall  not  require  any  company,  without  its  consent,  to  embrace 
in  such  route  substantially  less  than  the  entire  length  of  its 
railroad  and  of  any  intermediate  railroad  operated  in  conjunc- 
tion and  under  a  common  management  or  control  therewith 
which  lies  between  the  termini  of  such  proposed  through  route, 
unless  to  do  so  would  make  such  through  route  unreasonably 
long  as  compared  with  another  practicable  through  route 
which  could  otherwise  be  established. 

In  all  cases  where  at  the  time  of  delivery  of  property  to 
any  railroad  corporation  being  a  common  carrier,  for  trans- 
portation subject  to  the  provisions  of  this  Act  to  any  point  of 
destination,  between  which  and  the  point  of  such  delivery  for 
shipment  two  or  more  through  routes  and  through  rates  shall 
have  been  established  as  in  this  Act  provided  to  which  through 
routes  and  through  rates  such  carrier  is  a  party,  the  person, 
firm  or  corporation  making  such  shipment,  subject  to  such 
reasonable  exceptions  and  regulations  as 
Tr°  °'^h^°'^*  H    ^^^  Interstate  Commerce  Commission  shall 

Through  Rate"  ^  from  time  to  time  prescribe,  shall  have  the 
right  to  designate  in  writing  by  which  of 
such  through  routes  such  property  shall  be  transported  to  des- 
tination, and  it  shall  thereupon  be  the  duty  of  the  initial  car- 
rier to  route  said  property  and  issue  a  through  bill  of  lading 
therefor  as  so  directed,  and  to  transport  said  property  over 
its  own  line  or  lines  and  deliver  the  same  to  a  connecting  line 
or  lines  according  to  such  through  route,  and  it  shall  be  the 
duty  of  each  of  said  connecting  carriers  to  receive  said  property 
and  transport  it  over  the  said  line  or  lines  and  deliver  the  same 
to  the  next  succeeding  carrier  or  consignee  according  to  the 
routing  instructions  in  said  bill  of  lading:    Provided,  hotcever, 


—173— 

That  the  shipper  shall  in  all  instances  have  the  right  to  de- 
termine, where  competing  lines  of  railroad  constitute  portions 
of  a  through  line  or  route,  over  which  of  said  competing  lines 
so  constituting  a  portion  of  said  through  line  or  route  his 
freight  shall  be  transported. 

It  shall  be  unlawful  for  any  common  carrier  subject  to 
the  provisions  of  this  Act,  or  any  officer,  agent,  or  employee  of 
such  common  carrier,  or  for  any  other  person  or  corporation 
lawfully  authorized  by  such  common  carrier  to  receive  informa- 
tion therefrom,  knowingly  to  disclose  to  or  permit  to  be  ac- 
quired by  any  person  or  corporation  other  than  the  shipper 
or  consignee,  without  the  consent  of  such  shipper  or  consignee, 
any  information  concerning  the  nature,  kind,  quantity,  des- 
tination, consignee,  or  routing  of  any  property  tendered  or  de- 
livered to  such  common  carrier  for  interstate  transportation, 
which  information  may  be  used  to  the  detriment  or  prejudice 
of  such  shipper  or  consignee,  or  which  may 
Disclosing  improperly    disclose    his    business    transac- 

information.  tions  to  a  competitor;  and  it  shall  also  be 

unlawful  for  any  person  or  corporation  to 
solicit  or  knowingly  receive  any  such  information  which  may 
be  so  used:  Provided,  That  nothing  in  this  Act  shall  be  con- 
strued to  prevent  the  giving  of  such  information  in  response  to 
any  legal  process  issued  under  the  authority  of  any  state  or 
federal  court,  or  to  any  officer  or  agent  of  the  government  of  the 
United  States,  or  of  any  State  or  Territory,  in  the  exercise  of 
his  powers,  or  to  any  officer  or  other  duly  authorized  person 
seeking  such  information  for  the  prosecution  of  persons 
charged  with  or  suspected  of  crime ;  or  information  given  by  a 
common  carrier  to  another  carrier  or  its  duly  authorized  agent, 
for  the  purpose  of  adjusting  mutual  traffic  accounts  in  the  ordi- 
nary course  of  business  of  such  carriers. 

Any  person,  corporation  or  association  violating  any  of  the 
provisions  of  the  next  preceding  paragraph  of  this  section  shall 
be  deemed  guilty  of  a  misdemeanor,  and  for  each  offense,  on 
conviction,  shall  pay  to  the  United  States  a  penalty  of  not  more 
than  one  thousand  dollars. 


—174— 

If  the  owner  of  property  transported  under  this  Act  di- 
rectly or  indirectly  renders  any  service  connected  with  such 
transportation,  or  furnishes  any  instrumen- 

Reasonable  tality  used  therein,  the  charge    and    allow- 

Allowance:!-  -  , ,         „         i     m   i  ,  .      . 

Owner  of  Property      ^^ce  theretor  Shall  be  no  more  than  is  just 

Who  Furnishes  and   reasonable,  and   the  Commission  may, 

Instrumentahty  of  ,.  ,  .  ,    .  "^ ' 

Transportation—  atter  hearinf>-  on  a  complaint  or  on  its  own 

initiative,  determine  what  is  a  reasonable 
charo:e  as  the  maximum  to  be  paid  by  the  carrier  or  carriers 
for  the  services  so  rendered  or  for  the  use  of  the  instrumental- 
ity so  furnished,  and  fix  the  same  by  appropriate  order,  which 
order  shall  have  the  same  force  and  effect  and  be  enforced  in 
like  manner  as  the  orders  above  provided  for  under  this  sec- 
tion. 

The  foregoing  enumeration  of  powers  shall  not  exclude  any 
power  which  the  Commission  would  otherwise  have  in  the 
making  of  an  order  under  the  provisions  of  this  Act. 

Section  16.  That  if,  after  hearing  on  a  complaint  made 
as  provided  in  section  thirteen  of  this  Act,  the  Commission 

shall  determine  that  any  party  complainant 
Award  of  is  entitled  to  an  award  of  damages  under 

Damages.13  ^jjg  provisions  of  this  Act,  for  a  violation 

thereof,  the  Commission  shall  make  an  order 
directing  the  carrier  to  pay  to  the  complainant  the  sum  to 
which  he  is  entitled  on  or  before  a  day  named. 

If  a  carrier  does  not  comply  with  an  order  for  the  pay- 
ment of  money  within  the  time  limit  in  such  order,  the  com- 

12  The  Supreme  Court  in  the  Diffenbaugh  case,  222  U.  S.,  42  (1911), 
in  construing  this  portion  of  section  IS  as  it  pertains  to  elevation  of 
grain  in  transit  and  allowances  made  by  transportation  companies  to  ele- 
vators which  were  owned  by  the  owner  of  the  grain  said  the  only  restriction 
being  that  he  shall  pay  no  more  than  is  reasonable,  and  the  only  permissive 
element  being  that  the  Commission  may  determine  the  maximum  in  case 
there  is  complaint  (or,  now,  upon  its  own  motion.  Act  of  June  18,  1910, 
c.  309,  12,  36  Stat.,  539,  553).     (See  Paragraph  No.  29.) 

13  The  jurisdiction  of  the  Commission  to  award  damages  for  unlawful 
discrimination  in  elevation  allowances  is  covered  by  the  Commission  in 
Washer  Grain  Companv  case,  15,  I.  C.  C,  Rep.,  147  (1909),  paragraph  28, 
also  16,  I.  C.  C.  Rep.,  337,  paragraph  29. 


—175— 

plainant,  or  any  person  for  whose  benefit  snch  order  was  made, 
may  file  in  the  circnit  conrt  of  the  United  States  for  the  dis- 
trict in  which  he  resides  or  in  which  is  located  the  principal 
operatinj!^  office  of  the  carrier,  or  throngh  which  the  road  of 
the  carrier  rnns,  or  in  any  state  court  of  general  jurisdiction 
having  jurisdiction  of  the  parties,  a  petition  setting  forth 
briefly  the  causes  for  which  he  claims  damages,  and  the  order 

of  the  Commission  in  the  premises.  Such 
Pecition  if  suit  in  the  circuit  court  of  the  United  States 

v/ithOrder.*^"'^  shall  proceed  in  all  respects  like  other  civil 

suits  for  damages,  except  that  on  the  trial 
of  such  suit  the  findings  and  order  of  the  Commission  shall 
be  prima  facie  evidence  of  the  facts  therein  stated,  and  except 
that  the  petitioner  shall  not  be  liable  for  costs  in  the  circuit 
court  nor  for  costs  at  any  subsequent  stage  of  the  proceedings 
unless  they  accrue  upon  his  appeal.  If  the  petitioner  shall 
finally  prevail  he  shall  be  allowed  a  reasonable  attorney's  fee, 
to  be  taxed  and  collected  as  part  of  the  costs  of  the  suit.  All 
complaints  for  the  recovery  of  damages  shall  be  filed  with  the 
Commission  within  two  years  from  the  time  the  cause  of  action 
accrues,  and  not  after,  and  a  petition  for  the  enforcement  of 
an  order  for  the  payment  of  money  shall  be  filed  in  the  circuit 
court  or  state  court  within  one  year  from  the  date  of  the  order 
and  not  after. 

If  such  suits  all  parties  in  whose  favor  the  Commission 
may  have  made  an  award  or  damages  by  a  single  order  may  be 
joined  as  plaintiffs,  and  all  of  the  carriers  parties  to  such  order 
awarding  damages  may  be  joined  as  defendants,  and  such  suit 
may  be  maintained  by  such  joint  plaintiffs 
Joint  Parties.  and  against  such  joint  defendants  in  any 

district  where  any  one  of  such  joint  plain- 
tiffs could  maintain  such  suit  against  any  one  of  such  joint  de- 
fendants; and  service  of  process  against  any  one  of  such  de- 
fendants as  may  not  be  found  in  the  district  where  the  suit  is 
brought  may  be  made  in  any  district  where  such  defendant 
carrier  has  its  principal  operating  office.  In  case  of  such  joint 
suit  the  recovery,  if  any,  may  be  by  judgment  in  favor  of  any 


—176— 

ono  of  sncli  plaintiffs,  a.^aiiist  llio  defciulanl  found  to  he  liable 
to  such  plaintiff. 

Every  order  of  the  Commission  shall  bo  forthwith  served 
upon  the  designated  accent  of  the  carriei*  in  the  City  of  Wash- 
ington or  in  such  other  manner  as  may  be 
Service.  provided  by  law. 

The  Commission  shall  be  anthorized  to 
suspend  or  modify  its  orders  upon  such  notice  and  in  such  man- 
ner as  it  shall  deem  proper. 

It  shall  be  the  duty  of  every  common  carrier,  its  agents 
and  employees,  to  observe  and  comply  with  such  orders  so  long 
as  the  same  shall  remain  in  effect. 

Any  carrier,  any  officers,  representative,  or  agent  of  a  car- 
rier, or  any  receiver,  trustee,  lessee,  or  agent  of  either  of  them, 
who  knowingly  fails  or  neglects  to  obey  any  order  made  under 
the  provisions  of  section  fifteen  of  this  Act  shall  forfeit  to  the 
United  States  the  sum  of  five  thousand  dollars  for  each  offense. 
Every  distinct  violation  shall  be  a  separate  offense,  and  in  case 
of  a  continuing  violation  each  day  shall  be  deemed  a  separate 
offense. 

The  forfeiture  provided  for  in  this  Act  shall  be  payable 
into  the  Treasury  of  the  United  States,  and  shall  be  recover- 
able in  a  civil  suit  in  the  name  of  the  United 
Punishment.  States,  brought    in    the    district  where  the 

carrier  has  its  principal  operating  office,  or 
in  any  district  through  which  the  road  of  the  carrier  runs. 

It  shall  be  the  duty  of  the  various  district  attorneys,  under 
the  direction  of  the  Attorney  General  of  the  United  States,  to 
prosecute  for  the  recovery  of  forfeitures.  The  costs  and  ex- 
penses of  such  prosecution  shall  be  paid  out  of  the  appropria- 
tion for  the  expenses  of  the  courts  of  the  United  States.  The 
Commission  may  employ  such  attorneys  as 
Employ  Counsel.  it  finds  necessary  for  proper  legal  aid  and 

service  of  the  Commission  or  its  members  in 
the  conduct  of  their  work  or  for  proper  i*epresentation  of  the 
public  interests  in  investigations  made  by  it  or  cases  or  pro- 
ceedings pending  before  it,  whether  at  the  Commission's  own 
instance  or  upon  complaint,  or  to  appear  for  and  represent  the 
Commission  in  any  case  pending  in  the  commerce  court;  and 


—177— 

the  expenses  of  such  employment  shall  be  paid  out  of  the  ap- 
propriation for  the  Commission. 

If  any  carrier  fails  or  neglects  to  obey  any  order  of  the 
Commission  other  than  for  the  payment  of  money,  while  the 
same  is  in  effect,  the  Interstate  Commerce  Commission  or  any 
party  injured  thereby,  or  the  United  States,  by  its  Attorney 
General,  may  apply  to  the  commerce  court  for  the  enforce- 
ment of  such  order.  If,  after  hearing,  that 
Enforcing  Order.  court  determines  that  the  order  was  regu- 
larly made  and  duly  served,  and  that  the 
carrier  is  in  disobedience  of  the  same,  the  Court  shall  enforce 
lOibedience  to  such  order  by  a  writ  of  injunction  or  other  proper 
process,  mandatory  or  otherwise,  to  restrain  such  carrier,  its 
officers,  agents,  or  representatives,  from  further  disobedience 
of  such  order,  or  to  enjoin  upon  it  or  them  obedience  to  the 
same. 

The  copies  of  schedules  and  classifications  and  tariffs  of 
rates,  fares,  and  charges,  and  of  all  contracts,  agreements,  and 
arrangements  between  common  carriers  filed 
Public  Records.  with  the  Commission    as    herein    provided, 

and  the  statistics,  tables,  and  figures  con- 
tained in  the  annual  or  other  reports  of  carriers  made  to  the 
Commission  as  required  under  the  provisions  of  this  Act  shall 
be  preserved  as  public  records  in  the  custody  of  the  secretary 
of  the  Commission,  and  shall  be  received  as  prima  facie  evi- 
dence of  what  they  purport  to  be  for  the  purpose  of  investiga- 
tions by  the  Commission  and  in  all  judicial  proceedings;  and 
copies  of  and  extracts  from  any  of  said  schedules,  classifica- 
tions, tariffs,  contracts,  agreements,  arrangements,  or  reports, 
made  public  records  as  aforesaid,  certified  by  the  secretary 
under  the  Commission's  seal,  shall  be  received  in  evidence  with 
like  effect  as  the  originals. 

Section  16a.  That  after  a  decision,  order,  or  requirement 
has  been  made  by  the  Commission  in  any  proceeding  any  party 
thereto  may  at  any  time  make  application  for  rehearing  of  the 
same,  or  any  matter  determined  therein,  and  it  shall  be  lawful 
for  the  Commission  in  its  discretion  to  grant  such  a  rehearing 
if  sufficient  reason  therefor  be  made  to  appear.  Application 
for  rehearing  shall  be  governed  by  such  general  rules  as  the 


—178— 

Commission  may  establish.  Xo  sncli  application  shall  excnse 
any  carrier  from  complying  with  or  obeying  any  decision,  order, 
or  requirement  of  the  Commission,  or  operate  in  any  manner 
to  stay  or  postpone  the  enforcement  thereof, 
Rehearings.  without  the  Special  order    of   the    Commis- 

sion. In  case  a  rehearing  is  granted  the 
proceedings  thereupon  shall  conform  as  nearly  as  may  be  to 
the  proceedings  in  an  original  hearing,  except  as  the  Commis- 
sion may  otherwise  direct;  and  if,  in  its  judgment,  after  such 
rehearing  and  the  consideration  of  all  facts,  including  those 
arising  since  the  former  hearing,  it  shall  appear  that  the  orig- 
inal decision,  order,  or  requirement  is  in  any  respect  unjust  or 
unwarranted,  the  Commission  may  reverse,  change,  or  modify 
the  same  accordingly.  Any  decision,  order,  or  requirement 
made  after  such  rehearing,  reversing,  changing,  or  modifying 
the  original  determination  shall  be  subject  to  the  same  pro- 
visions as  an  original  order. 

Section  17.  That  the  Commission  may  conduct  its  pro- 
ceedings in  such  manner  as  will  best  conduce  to  the  pr-oper 
dispatch  of  business  and  to  the  ends  of  justice.  A  majority  of 
the  Commission  shall  constitute  a  quorum  for  the  transaction 
of  business,  but  no  Commissioner  shall  participate  in  any  hear- 
ing or  proceeding  in  which  he  has  any  pecuniary  interest.   Said 

Commission  may,  from  time  to  time,  make 
Procedure.  or  amend  such  general  rules  or  orders  as 

may  be  requisite  for  the  order  and  regula- 
tion of  proceedings  before  it,  including  forms  of  notices  and 
the  service  thereof,  which  shall  conform,  as  nearly  as  may  be, 
to  those  in  use  in  the  courts  of  the  United  States.  Any  party 
may  appear  before  said  Commission  and  be  heard,  in  person 
or  by  attorney.  Every  vote  and  official  act  of  the  Commission 
shall  be  entered  of  record,  and  its  proceedings  shall  be  public 
upon  the  request  of  either  party  interested.  Said  Commission 
shall  have  an  official  seal,  which  shall  be  judicially  noticed. 
Either  of  the  members  of  the  Commission  may  administer  oaths 
and  affirmations  and  sign  subpoenas. 

Section  18.  That  each  Commissioner  shall  receive  an  an- 
nual salary  of  seven  thousand  five  hundred  dollars,  payable  in 


::^79— 

the  same  manner  as  the  judj^es  of  the  courts  of  the  United 
States.  The  Commission  sliall  appoint  a  secretary,  who  shall 
receive  an  annual  salary  of  three  thousand  five  hundred  dollars, 
payable  in  like  manner.  The  Commission  shall  have  authority 
to  employ  and  fix  the  compensation  of  such  other  employees  as 

it  may  find  necessary  to  the  proper  perform- 
Salaries.  ance  of  its  duties.  Until  otherwise  provided 

by  law,  the  Commission  may  hire  suitable 
offices  for  its  use  and  shall  have  authority  to  procure  all  nec- 
essary office  supplies.  Witnesses  summoned  before  the  Com- 
mission shall  be  paid  the  same  fees  and  mileage  that  are  paid 
witnesses  in  the  courts  of  the  United  States. 

All  of  the  expenses  of  the  Commission,  including  all  nec- 
essary expenses  of  transportation  incurred  by  the  Commission- 
ers, or  by  their  employees  under  their  orders,  in  making  any 
investigations,  or  upon  official  business  in  any  other  places  than 
in  the  City  of  Washington,  shall  be  allowed  and  paid  on  the 
presentation  of  itemized  vouchers  therefor  approved  by  the 
chairman  of  the  Commission. 

Section  19.  That  the  principal  office  of  the  Commission 
shall  be  in  the  City  of  Washington,  where  its  general  session 
shall  be  held;  but  whenever  the  convenience  of  the  public  or 

the  parties  may  be  promoted  or  delay  or  ex- 
Office,  pense   prevented   thereby,    the   Commission 

may  hold  special  sessions  in  any  part  of  the 
United  States.  It  may,  by  one  or  more  of  the  Commissioners, 
prosecute  any  inquiry  necessary  to  its  duties,  in  any  part  of 
the  United  States,  into  any  matter  or  question  of  fact  pertain- 
ing to  the  business  of  any  common  carrier  subject  to  the  pro- 
visions of  this  Act. 

Section  20.  That  the  Commission  is  hereby  authorized 
to  require  annual  reports  from  all  common  carriers  subject  to 
the  provisions  of  this  Act,  and  from  the  owners  of  all  railroads 
engaged  in  interstate  commerce  as  defined  in  this  Act,  to  pre- 
scribe the  manner  in  which  such  reports  shall  be  made,  and  to 
require  from  such  carriers  specific  answers  to  all  questions 
upon  which  the  Commission  may  need  information.  Such  an- 
nual reports  shall  show  in  detail  the  amount  of  capital  stock 


— i^i^n 

issued,  the  amounts  paid  therefor,  and  the  manner  of  payment 
for  the  same ;  the  dividends  paid,  the  snrplus 
Annual  Repcrts.i^  found,  if  any,  and  the  number  of  stockhold- 
ers; the  funded  and  floating  debts  and  the 
interest  paid  thereon;  the  cost  and  value  of  the  carrier's  prop- 
erty, franchises,  and  equipments;  the  number  of  employees  and 
the  salaries  paid  each  class;  the  accidents  to  passengers,  em- 
ployees, and  other  persons,  and  the  causes  thereof;  the  amounts 
expended  for  improvements  each  year,  how  expended,  and  the 
character  of  such  improvement;  the  earnings  and  receipts  from 
each  branch  of  business  and  from  all  sources;  the  operating 
and  other  expenses ;  the  balances  of  profit  and  loss ;  and  a  com- 
plete exhibit  of  the  financial  operations  of  the  carrier  each  year, 
including  an  annual  balance  sheet.  Such  reports  shall  also 
contain  such  information  in  relation  to  rates  or  regulations 
concerning  fares  or  freights,  or  agreements,  arrangements,  or 
contracts  affecting  the  same  as  the  Commission  may  require; 
and  the  Commission  may,  in  its  discretion,  for  the  purpose  of 
enabling  it  the  better  to  carry  out  the  purposes  of  this  Act, 
prescribe  a  period  of  time  within  which  all  common  carriers 
subject  to  the  provisions  of  this  Act  shall  have,  as  near  as  may 
be,  a  uniform  system  of  accounts,  and  the  manner  in  which 
such  accounts  shall  be  kept. 

Said  detail  reports  shall  contain  all  the  required  statistics 
for  the  period  of  twelve  months  ending  on  the  thirtieth  day  of 
June  in  each  year,  or  on  the  thirty-first  day  of  December  in 
each  year  if  the  Commission  by  order  substitute  that  period  for 
the  year  ending  June  thirtieth,  and  shall  be  made  out  under 
oath  and  filed  with  the  Commission  at  its  office  in  Washington 
within  three  months  after  the  close  of  the  year  for  which  the 
report  is  made,  unless  additional  time  be 
Detailed  Reports.  granted  in  any  case  by  the  Commission ; 
and  if  any  carrier,  person,  or  corporation 
subject  to  the  provisions  of  this  Act  shall  fail  to  make  and  file 
said  annual  reports  within  the  time  above  specified,  or  within 
the  time  extended  by  the  Commission,  for  making  and  filing  the 
same,  or  shall  fail  to  make  specific  answer  to  any  question  au- 
thorized by  the  provisions  of  this  section  within  thirty  days 


1-4  See  Note  1.  supra,  citing  Goodrich  Transit  Co.  case,  222  U.  S.,  194. 


rii^iz: 

from  the  time  it  is  lawfully  required  so  to  do,  such  party  shall 
forfeit  to  the  United  States  the  sum  of  one  hundred  dollar?^ 
for  each  and  every  day  it  shall  continue  to  be  in  default  with 
respect  thereto.  The  Commission  shall  also  have  authority  by 
general  or  special  orders  to  require  said  carriers,  or  any  of 
them,  to  file  monthly  reports  of  earnings  and  expenses,  and  to 
file  periodical  or  special,  or  both  periodical  and  special,  reports 
concerning  an}"  matters  about  which  the  Commission  is  author- 
ized or  required  by  this  or  any  other  law  to  inquire  or  to  keep 
itself  informed  or  which  it  is  required  to  enfoi'ce;  and  such 
periodical  or  special  reports  shall  be  under  oath  whenever  the 
Commission  so  requires;  and  if  any  such  carrier  shall  fail  to 
make  and  file  any  such  periodical  or  special  report  within  the 
time  fixed  by  the  Commission,  it  shall  be  subject  to  the  for- 
feitures last  above  provided. 

Said  forfeitures   shall   be  recovered  in   the  manner  pro- 
vided for  the  recovery  of  forfeitures  under  the  provisions  of 

this  Act. 
Forfeiture.  The  oath  required  by  this  section  may 

be  taken  before  any  person  authorized  to 
administer  an  oath  by  the  laws  of  the  State  in  which  the  same 
is  taken. 

The  Commission  may,  in  its  discretion,  prescribe  the  forms 
of  any  and  all  accounts,  records,  and  memoranda  to  be  kept  by 
carriers  subject  to  the  provisions  of  this  Act,  including  the 
accounts,  records,  and  memoranda  of  the  movement  of  traffic 
as  wtII  as  the  receipts  and  expenditures  of  moneys.  The  Com- 
mission shall  at  all  times  have  access  to  all 
Form  of  accouuts,  records  and  memoranda  kept  by 

Accounts.  carriers  subject  to  this  Act,  and  it  shall  be 

unlawful  for  such  carriers  to  keep  any  other 
accounts,  records  or  memoranda  than  those  prescribed  or  ap- 
proved by  the  Commission,  and  it  may  employ  special  agents 
or  examiners,  who  shall  have  authority  under  the  order  of  the 
Commission  to  inspect  and  examine  any  and  all  accounts,  rec- 
ords, and  memoranda  kept  by  such  carriers.  This  provision 
shall  apply  to  receivers  of  carriers  and  operating  trustees. 

In  case  of  failure  or  refusal  on  the  part  of  any  such  car- 
rier, receiver,  or  trustee  to  keep  such  accounts,  records  and 


-182—  

memoraiula  on  the  books  and  in  the  maimer  prescribed  by  the 
Commission,    or   to   submit   such   accounts, 
Punishment.  records,  and  memoranda  as  are  kept  to  the 

inspection  of  the  Commission  or  any  of  its 
authorized  agents  or  examiners,  such  carrier,  receiver,  or  trus- 
tee shall  forfeit  to  the  United  States  the  sum  of  five  hundred 
dollars  for  each  such  offense  and  for  each  and  every  day  of  the 
continuance  of  such  offense,  such  forfeitures  to  be  recoverable 
in  the  same  manner  as  other  forfeitures  provided  for  in  this 
Act. 

Any  person  who  shall  willfully  make  any  false  entry  in 
the  accounts  of  any  book  of  accounts  or  in  any  record  or  mem- 
oranda kept  by  a  carrier,  or  who  8hall  willfully  destroy,  muti- 
late, alter  or  by  any  other  means  or  device  falsify  the  record 
of  such  account,  record,  or  memoranda,  or  who  shall  wilfully 
neglect  or  fail  to  make  full,  true  and  correct  entries  in  such 
accounts,  records,  or  memoranda  of  all  facts  and  transactions 
appertaining  to  the  carrier's  business,  or  shall  keep  any  other 
accounts,  records,  or  memoranda  than  those  prescribed  or  ap- 
proved by  the  Commission,  shall  be  deemed  guilty  of  a  misde- 
meanor and  shall  be  subject,  upon  conviction  in  any  court  of 
the  United  States  of  competent  jurisdiction,  to  a  fine  of  not 
less  than  one  thousand  dollars  nor  more  than  five  thousand 
dollars,  or  imprisonment  for  a  term  not  less  than  one  year  nor 
more  than  three  years,  or  both  such  fine  and  imprisonment : 

Provided,  That  the  Commission  may  in  its  discretion  issue 
orders    specifying    such    operation,    accounting,    or    financial 
papers,  records,  books,  blanks,  tickets,  stubs. 
Papers  ^'1*  documents  of  carriers  which  may,  after 

Destroyed.  a  reasonable  time,  be  destroyed,  and  prescrib- 

ing the  length  of  time  such  books,  papers, 
or  documents  shall  be  preserved. 

Any  examiner  who  divulges  any  fact  or  information  which 
may  come  to  his  knowledge  during  the  course  of  such  examina- 
tion, except  in  so  far  as  he  may  be  directed 
Punishment,  ^^7  f^^'  Commission  or  by  a  court  or  judge 

Examiner.  thereof,  shall  be  subject,  upon  conviction  in 

any  court  of  the  United  States  of  competent 
jurisdiction,  to  a  fine  of  not  more  than  five  thousand  dollars 
or  imprisonment  for  a  term  not  exceeding  two  years,  or  both. 


—183— 

That  the  circuit  and  district  courts  of  the  United  States 
shall  have  jurisdiction,  upon  the  application  of  the  Attorney 
General  of  the  United  States  at  the  request  of  the  Commission, 
alleging  a  failure  to  comply  with  or  a  viola- 
Court  Jurisdiction.  tion  of  any  of  the  provisions  of  said  Act  to 
regulate  commerce  or  of  any  Act  supple- 
mentary thereto  or  amendatory  thereof  by  any  common  car- 
rier, to  issue  a  writ  or  writs  of  mandamus  commanding  such 
common  carrier  to  comply  with  the  provisions  of  said  Acts,  or 
any  of  them. 

And  to  carry  out  and  give  effect  to  the  provisions  of  said 
Acts,  or  any  of  them,  the  Commission  is  hereby  authorized  to 
employ  special  agents  or  examiners  who 
Special  Examiners.  shall  have  power  to  administer  oaths,  exam- 
ine witnesses  and  receive  evidence. 
That  any  common  carrier,  railroad,  or  transportation 
company  receiving  property  for  transportation  from  a  point  in 
one  State  to  a  point  in  another  State  shall  issue  a  receipt  or 
bill  of  lading  therefor  and  shall  be  liable  to  the  lawful  holder 
thereof  for  any  loss,  damage,  or  injury  to  such  property  caused 
by  it  or  by  any  common  carrier,  railroad,  or  transportation 
company  to  which  such  property  may  be  delivered  or  over  whose 
line  or  lines  such  property  may  pass,  and  no  contract,  receipt, 
rule,  or  regulation  shall  exempt  such  common  carrier,  railroad, 
or  transportation  company  from  the  liability  hereby  imposed : 
Provided,  That  nothing  in  this  section  shall  deprive  any  holder 
of  such  receipt  or  bill  of  lading  of  any  remedy  or  right  of  ac- 
tion which  he  has  under  existing  law. 

That  the  common  carrier,  railroad,  or  transportation  com- 
pany issuing  such  receipt  or  bill  of  lading  shall  be  entitled  to 
recover  from  the  common  carrier,  railroad,  or  transportation 
company  on  whose  line  the  loss,  damage,  or  injury  shall  have 
been  sustained  the  amount  of  such  loss,  damage,  or  injury,  as 
it  may  be  required  to  pay  to  the  owners  of  such  property,  as 
may  be  evidenced  by  any  receipt,  judgment,  or  transcript 
thereof. 

Section  21.  That  the  Commission  shall,  on  or  before  the 
first  day  of  December  in  each  year,  make  a  report,  which  shall 


—184— 

be  transmitted  to  Congress,  and  copies  of  which  shall  be  dis- 
tributed as  are  the  other  reports  trans- 
Annual  Reports.  niitted  to  Congress.  This  report  shall  con- 
tain such  information  and  data  collected  by 
the  Commission  as  may  be  considered  of  value  in  the  deter- 
mination of  questions  connected  with  the  regulation  of  com- 
merce together  with  such  recommendations  as  to  additional 
legislation  relating  thereto  as  the  Commission  may  deem  nec- 
essary; and  the  names  and  compensation  of  the  persons  em- 
ployed by  said  Commission, 

Section  22.  That  nothing  in  this  Act  shall  prevent  the 
carriage,  storage,  or  handling  of  property  free  or  at  reduced 
rates  for  the  United  States,  State,  or  municipal  governments, 
or  for  charitable  purposes,  or  to  or  from  fairs  and  expositions 
for  exhibition  thereat,  or  the  free  carriage  of  destitute  and 
homeless  persons  transported  by  charitable  societies,  and  the 
necessary  agents  employed  in  such  transportation,  or  the  issu- 
ance of  mileage,  excursion,  or  commutation  passenger  tickets; 
nothing  in  this  Act  shall  be  construed  to  prohibit  any  common 
carrier  from  giving  reduced  rates  to  ministers  of  religion,  or 
to  municipal  governments  for  the  transportation  of  indigent 
persons,  or  to  inmates  of  the  National  Homes  or  State  Homes 
for  Disabled  Volunteer  Soldiers,  and  of  Soldiers  and  Sailors' 
Orphan  Homes,  including  those  about  to  enter  and  those  re- 
turning home  after  discharge,  under  arrangements  with  the 
board  of  managers  of  said  homes ;  nothing  in  this  Act  shall  be 
construed  to  prevent  i-ailroads  from  giving  free  carriage  to  their 
own  officers  and  employes,  or  to  prevent  the  principal  officers 
of  any  railroad  company  or  companies  from  exchanging  passes 
or  tickets  with  other  railroad  companies  for  their  officers  and 
employes ;  and  nothing  in  this  Act  contained 
Reduced  Rates,  shall  in  any  wav  abridge  or  alter  the  rem- 

Refers  to  Sections  ,.  .     .^ 

4,  6  and  10.  edies  now  existing  at  common    law    or    hj 

statute,  but  the  provisions  of  this  Act  are  in 
addition  to  such  remedies:  Provided,  That  no  pending  litiga- 
tion shall  in  any  way  be  affected  by  this  Act :  Provided,  further, 
That  nothing  in  this  Act  shall  prevent  the  issuance  of  joint 
interchangeable  five-thousand-mile  tickets,  with  special  privi- 


—185— 

leges  as  to  the  amount  of  free  baggage  that  may  be  carried 
under  mileage  tickets  of  one  thousand  or  more  miles.     But  be- 
fore any  common  carrier,  subject  to  the  provisions  of  this  Act, 
shall  issue  any  such  joint  interchangeable  mileage  tickets  with 
special  privileges,  as  aforesaid,  it  shall  file  with  the  Interstate 
Commerce  Commission  copies  of  the  joint  tariffs  of  rates,  fares, 
or  charges  on  which  such  joint  interchangeable  milegae  tickets 
are  to  be  based,  together  with  specifications  of  the  amount  of 
free  baggage  permitted  to  be  carried  under  such  tickets  in  the 
same  manner  as  common  carriers  are  required  to  do  with  re- 
gard to  other  joint  rates  by  section  six  of  this  Act;  and  all 
the  provisions  of  said  section  six  relating  to  joint  rates,  fares, 
and  charges  shall  be  observed  by  said  common  carriers  and  en- 
forced by  the  Interstate  Commerce  Commission  as  fully  with 
regard  to  such  joint  interchangeable  mileage  tickets  as  with  re- 
gard to  other  joint  rates,  fares  and  charges  referred  to  in  said 
section  six.     It  shall  be  unlawful  for  any  common  carrier  that 
has  issued  or  authorized  to  be  issued  any  such  joint  inter- 
changeable mileage  tickets  to  demand,  collect,  or  receive  from 
any  person  or  persons  a  greater  or  less  compensation  for  trans- 
portation of  persons  or  baggage  under  such  joint  interchange- 
able mileage  ticket  than  that  required  by  the  rate,  fare,  or 
charge  specified  in  the  copies  of  the  joint  tariff  of  rates,  fares 
or  charges  filed  with  the  Commission  in  force  at  the  time.   The 
provisions  of  section  ten  of  this  Act  shall  apply  to  any  viola- 
tion of  the  requirements  of  this  proviso. 

Section  23.  That  the  circuit  and  district  courts  of  the 
United  States  shall  have  jurisdiction  upon  the  relation  of  any 
person  or  persons,  firm,  or  corporation,  alleging  such  violation 
by  a  common  carrier  of  any  of  the  provisions  of  the  Act  to 
which  this  is  a  supplement  and  all  acts  amendatory  thereof, 
as  prevents  the  relator  from  having  interstate  traffic  moved  by 
said  common  carrier  at  the  same  rates  as 
Jurisdiction,  are  charged,  or  upon  terms  or  conditions  as 

Mandamu"^**'  favorable  as  those   given   by   said   common 

carrier  for  like  traffic  under  similar  condi- 
tions to  any  other  shipper,  to  issue  a  writ  or  writs  of  mandamus 
against  said  common  carrier,  commanding  such  common  car- 


— ^?:r 

rier  to  move  and  transport  the  traffic,  or  to  furnish  oars  or 
other  facilities  for  transportation  for  the  party  applying  for 
the  writ:  Provided,  That  if  any  question  of  fact  as  to  the 
proper  compensation  to  the  common  carrier  for  the  service  to 
be  enforced  by  the  writ  is  raised  by  the  pleadings,  the  wrvt  of 
peremptory  mandamus  may  issue,  notwithstanding  such  ques- 
tion of  fact  is  undetermined,  upon  such  terms  as  to  security, 
payment  of  money  into  the  court,  or  otherwise,  as  the  court 
may  think  proper,  pending  the  determination  of  the  question 
of  fact:  Provided,  That  the  remedy  hereby 
Mandamus.  given  by  writ  of  mandamus  shall  be  cumu- 

lative, and  shall  not  be  held  to  exclude  or 
interfere  with  other  remedies  provided  by  this  Act  or  the  Act 
to  which  it  is  a  supplement. 

Section  24.  That  the  Interstate  Commerce  Commission 
is  hereby  enlarged  so  as  to  consist  of  seven  members  with  terms 
of  seven  years,  and  each  shall  receive  ten  thousand  dollars  com- 
pensation annually.  The  qualifications  of  the  Commissioners 
and  the  manner  of  the  payment  of  their  salaries  shall  be  as  al- 
ready provided  by  law.  Such  enlargement  of  the  Commission 
shall  be  accomplished  through  appointment  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  of  two  addi- 
tional Interstate  Commerce  Commissioners,  one  for  a  term  ex- 
piring December  thirty-first,  nineteen  hundred  and  eleven,  one 
for  a  term  expiring  December  thirty-first. 
Commission  nineteen   hundred   and   twelve.     The  terms 

Enlarged.  of  the  present  Commissioners,  or  of  any  suc- 

cessor appointed  to  fill  a  vacancy  caused  by 
the  death  or  resignation  of  any  of  the  present  Commissioners, 
shall  expire  as  heretofore  provided  by  law.  Their  successors 
and  the  successors  of  the  additional  Commissioners  herein  pro- 
vided for  shall  be  appointed  for  the  full  term  of  seven  years, 
except  that  any  person  appointed  to  fill  a  vacancy  shall  be 
appointed  only  for  the  unexpired  term  of  the  Commissioner 
whom  he  shall  succeed.  Not  more  than  four  Commissioners 
shall  be  appointed  from  the  same  political  party. 


—187— 

Additional  Section.  (Act  of  June  29,  1906.)  That  all 
existing  laws  relating  to  the  attendance  of  witnesses  and  the 

production  of  evidence  and  the  compelling 
Witnesses—  ^^  testimony  under  the  Act  to  regulate  corn- 

Evidence,  merce  and  all  Acts  amendatory  thereto  shall 

apply  to  any  and  all  proceedings  and  hear- 
ings under  this  Act. 

Additional  Section.  That  all  laws  and  parts  of  laws  in 
conflict  with  the  provisions  of  this  Act  are  hereby  repealed, 

but  the  amendments  herein  provided  for 
Repeal.  shall  not  affect  causes  now  pending  in  courts 

of  the  United  States,  but  such  causes  shall 
be  prosecuted  to  a  conclusion  in  the  manner  heretofore  pro- 
vided by  law. 

Additional  Section.  That  this  Act  shall  take  effect  and 
be  in  force  from  and  after  its  passage. 

Additional  Provision — Act  June^  1910.  That  nothing  in 
this  Act  contained  shall  undo  or  impair  any  proceedings  here- 
tofore taken  by  or  before  the  Interstate  Commerce  Commission 

or  any  of  the  Acts  of  said  Commission ;  and 
Not  Retroactive.  in  any  cases,  proceedings,  or  matters  now 

pending  before  it,  the  Commission  may  ex- 
ercise any  of  the  powers  hereby  conferred  upon  it,  as  would  be 
proper  in  cases,  proceedings,  or  matters  hereafter  initiated; 
and  nothing  in  this  Act  contained  shall  operate  to  release  or 
affect  any  obligation,  liability,  penalty  or  forfeiture  heretofore 
existing  against  or  incurred  by  any  person,  corporation,  or 
association. 

Additional  Provision — Act  June,  1910.  That  the  Presi- 
dent is  hereby  authorized  to  appoint  a  Commission  to  investi- 
gate questions  pertaining  to  the  issuance  of  stocks  and  bonds 
by  railroad  corporations,  subject  to  the  provisions  of  the  Act 
to  regulate  commerce,  and  the  power  of  Congress  to  regulate  or 
affect  the  same,  and  to  fix  the  compensation  of  the  members 
of  such  Commission.     Said  Commission  shall  be  and  is  hereby 


zi^-^zi 

authorized  to  employ  experts  to  aid  in  the  work  of  inquiry  and 
examination,  and  such  clerks,  stenographers,  and  other  assist- 
ants as  may  be  necessary,  which  employee 
President  to  shall  be  paid  such  compensation  as  the  Corn- 

Appoint  Commission    mission  may  deem  iust  and  reasonable  npon 

to  Investi'-'ate  '-  v  r- 

Issuance  o'f  Stocks       ^  certificate  to  be  issued  by  the  chairman 
and  Bonds.  of   the   Commission.      The   several    depart- 

ments and  bureaus  of  the  government  shall 
detail  from  time  to  time  such  oflicials  and  employes  and  fur- 
nish such  information  to  the  Commission  as  may  be  directed 
'by  the  President.  For  the  purpose  of  its  investigations  the 
Commission  shall  be  authorized  to  incur  and  have  paid  upon 
the  certificate  of  its  chairman  such  expenses  as  the  Commission 
shall  deem  necessary:  Provided,  however,  That  the  total  ex- 
pense authorized  or  incurred  under  the  provisions  of  this  sec- 
tion for  compensation,  employes,  or  otherwise,  shall  not  ex- 
ceed the  sum  of  twenty-five  thousand  dollars. 

Additional  Provision — Act  June,  1910.  That  no  inter- 
locutory injunction  suspending  or  restraining  the  enforcement, 
operation,  or  execution  of  any  statute  of  a  State  by  restraining 
the  action  of  any  officer  of  such  State  in  the  enforcement  or 
execution  of  such  statute  shall  be  issued  or  granted  by  any 
justice  of  the  Supreme  Court,  or  by  any  circuit  court  of  the 
United  States,  or  by  any  judge  thereof,  or  by  any  district  judge 
acting  as  circuit  judge,  upon  the  ground  of  the  unconstitu- 
tionality of  such  statute,  unless  the  applica- 
interlocutory  tion  for  the  Same  shall  be  presented  to  a 

s"ltme!  Nof  t^o*  justice  of  the  Supreme  court  of  the  United 

Be  Issued.  States,  or  to  a  circuit  judge,  or  to  a  district 

judge  acting  as  circuit  judge,  and  shall  be 
heard  and  determined  by  three  judges,  of 
whom  at  least  one  shall  be  a  justice  of  the  Supreme  court  of 
the  United  States  or  a  circuit  judge,  and  the  other  two  may 
be  either  circuit  or  district  judges,  and  unless  a  majority  of 
said  three  judges  shall  concur  in  granting  such  application. 
Wherever  such  application  as  aforesaid  is  presented  to  a  jus- 
tice of  the  Supreme  court  of  the  United  States,  or  to  a  judge, 
he  shall  immediately  call  to  his  assistance  to  hear  and  deter- 


—189— 

mine  the  application  two  other  judges:  Provided,  however^ 
That  one  of  such  three  judges  shall  be  a  justice  of  the  vSupreme 
court  of  the  United  States  or  a  circuit  judge.  Said  applica- 
tion shall  not  be  heard  or  determined  before  at  least  five  days' 
notice  of  the  hearing  has  been  given  to  the  Governor  and  to  the 
Attorney  General  of  the  State,  and  to  such  other  persons  as 
may  be  defendants  in  the  suit:  Provided,  That  if  of  opinion 
that  irreparable  loss  or  damage  would  result  to  the  complain- 
ant unless  a  temporary  restraining  order  is  granted,  any  jus- 
tice of  the  Supreme  court  of  the  United  States,  or  any  circuit 
or  district  judge,  may  grant  such  temporary  restraining  order 
at  any  time  before  such  hearing  and  determination  of  the  ap- 
plication for  an  interlocutory  injunction,  but  such  temporary 
restraining  order  shall  only  remain  in  force  until  the  hearing 
and  determination  of  the  application  for  an  interlocutory  in- 
junction upon  notice  as  aforesaid.  The  hearing  upon  such  ap- 
plication for  an  interlocutory  injunction  shall  be  given  prece- 
dence and  shall  be  in  every  way  expedited  and  be  assigned 
for  a  hearing  at  the  earliest  practicable  day  after  the  expiration 
of  the  notice  hereinbefore  provided  for.  An  appeal  may  be 
taken  directly  to  the  Supreme  court  of  the  United  States  from 
the  order  granting  or  denying,  after  notice  and  hearing,  an  in- 
terlocutory injunction  in  such  case. 

Additional  Provision — Act  1910.  That  this  Act  shall 
take  effect  and  be  in  force  from  and  after  the  expiration  of 
sixty  days  after  its  passage  except  as  to  sec- 
Time  of  Taking  tions  twelve  and  sixteen,  which  sections 
Effect.  shall  take  effect  and  be  in  force  immedi- 
ately. (Explanation — These  section  num- 
bers refer  to  sections  12  and  16  of  the  amendments  as  passed 
June  18,  1910.  Section  12  is  section  15  of  this  book  and  section 
16  is  the  provision  act  at  the  bottom  of  page  31  and  top  of  this 
page.) 


"fSiff! 

IVft    000  744  281     ' 


